Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (August 14, 2023–August 20, 2023)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(August 14, 2023–August 20, 2023)
August 21, 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 scheduled 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: A divided Fifth Circuit affirmed in part and vacated in part a district court’s
order relating to the regulation of mifepristone, a prescription drug approved by the Food
and Drug Administration (FDA) for termination of a pregnancy. Plaintiffs challenged a
series of regulatory actions by the FDA relating to mifepristone’s approval and conditions
for the drug’s prescription and distribution. The Supreme Court had granted an
emergency stay of the district court’s order pending appeal. The Fifth Circuit panel
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vacated the district court’s order staying the FDA’s approval of the medication in 2000
and a generic version of the drug in 2019, after concluding that the challenge to the
approval of mifepristone in 2000 was likely time-barred and that plaintiffs had not
satisfied standing requirements to challenge the 2019 generic drug approval. The panel
affirmed the portions of the stay order regarding the FDA’s 2016 Amendments and 2021
Non-Enforcement Decision, which had generally eased access to mifepristone, after
concluding that the agency likely violated the Administrative Procedure Act. However,
even those portions of the district court’s order remain stayed under the Supreme Court’s
emergency order pending disposition of any subsequent petition for certiorari. If these
rulings go into effect, it would mean that mifepristone would be available under the
restrictions in effect before 2016 (All. for Hippocratic Medicine v. FDA).
• Civil Procedure: The Fifth Circuit considered a federal district court’s duty when, after
receiving a case through removal from state court, the federal court determines that it
lacks subject-matter jurisdiction to decide it. In that situation, the Fifth Circuit held, 28
U.S.C. § 1447(c) requires the district court to remand to state court even if it concludes
that the remand would be futile because the state court also cannot adjudicate the suit.
The Fifth Circuit, while recognizing that at least one other circuit has applied a futility
exception (albeit inconsistently), joined several sister circuits in holding that the statute
does not include an exception (Spivey v. Chitimacha Tribe of Louisiana).
• Civil Rights: A divided, en banc Fifth Circuit overruled its own precedent to hold that
Title VII of the Civil Rights Act permits an employee to challenge discrimination in the
terms and conditions of employment, including shift assignments, even if the
discrimination does not entail an “ultimate employment decision”—defined by circuit
caselaw to be hiring, granting leave, discharging, promoting, and compensating a worker
(Hamilton v. Dallas Cnty.).
• Civil Rights: A divided Ninth Circuit upheld a district court’s preliminary injunction
blocking enforcement of an Idaho law related to transgender athletes. The Idaho law
categorically bans transgender women and girls from participating in female sports and
provides that when there is a dispute over the sex of an athlete on a female sports team,
that athlete may be made to undergo medical procedures, including gynecological exams,
to verify their sex. The majority agreed that the plaintiffs were likely to succeed in their
claim that the law violates the Equal Protection Clause as to transgender athletes (by
categorically excluding them from female sports) and as to all female athletes (by making
them subject to a sex verification process that the majority understood to not apply to
male athletes). The majority determined that under circuit precedent, sex-based
classifications, including transgender status, are subject to heightened scrutiny under the
Equal Protection Clause. The majority held that the lower court did not abuse its
discretion in concluding that, based on the record before it, the methods used by the
Idaho law were not substantially related to, and in fact undermined, Idaho’s asserted goal
of providing opportunities to female athletes (Hecox v. Little).
• Consumer Protection: The Seventh Circuit reversed the dismissal of a borrower’s
complaint against a credit reporting agency (CRA) under the Fair Credit Reporting Act
(FCRA). The court held that a credit report violates the FCRA’s requirement of
“maximum possible accuracy” when the report has a material omission that could
reasonably be expected to adversely affect a consumer’s creditworthiness. The court
further held that a CRA’s failure to include a borrower’s undisputed entry into a Trial
Period Plan, a kind of mortgage modification, in a credit report renders that report
incomplete, and therefore inaccurate, under the FCRA (Chaitoff v. Experian Information
Solutions, Inc.).
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• Criminal Law & Procedure: A divided D.C. Circuit remanded a case so a criminal
defendant could be resentenced for his role in the unrest at the U.S. Capitol on January 6,
2021. The defendant had pleaded guilty to the petty offense of Parading, Demonstrating,
or Picketing in a Capitol Building under 40 U.S.C. § 5104. The district court sentenced
the defendant to imprisonment under 40 U.S.C. § 5109(b), and then to a term of
probation as provided in Title 18 of the U.S. Code. The D.C. Circuit majority held that
the sentencing court erred in mixing and matching these options. The majority engaged in
a close textual analysis of 18 U.S.C. § 1561(a)(3), which authorizes a sentence of
probation for certain crimes unless the defendant is “sentenced at the same time to a term
of imprisonment for the same or a different offense that is not a petty offense.” The
majority read this to mean that a court could not impose both imprisonment and probation
for a single offense, as had occurred here (United States v. Little).
• Criminal Law and Procedure: The Ninth Circuit affirmed a mandatory minimum
sentence under 18 U.S.C. § 924(c)(1)(A). The court held that aiding and abetting robbery
in violation of the Hobbs Act is a “crime of violence” for purposes of that statute (United
States v. Eckford).
• Education: The D.C. Circuit affirmed a lower court’s denial of a temporary restraining
order and an injunction under Section 1415(j) of the Individuals with Disabilities
Education Act (IDEA). Section 1415(j), known as the “stay-put” provision, provides that
a student “shall remain” in his or her “then-current placement” while an IDEA hearing is
pending unless the parent and the state or local education agency agree otherwise. Joining
at least four other circuit courts, the court held that the “stay-put” provision does not
apply when a fundamental change to an eligible student’s individualized education
program (in this case, discharge from a private residential treatment center) occurs for
reasons outside the control of the educational agency (Davis v. District of Columbia).
• Education: The Second Circuit held that Vermont Law School’s establishment of a
barrier to permanently conceal from public view two murals that some found racially
offensive did not violate the artist’s rights under the Visual Artists Rights Act of 1990.
While that law prohibits the “modification” or “destruction” of qualifying artwork, the
court held that neither of those terms encompassed an artwork’s concealment in a manner
that does not otherwise alter the work (Kerson v. Vermont Law School, Inc.).
• Election Law: A divided Seventh Circuit held that an Indiana law allowing voters over
65 to vote by mail does not violate the Twenty-Sixth Amendment. Analogizing to the
Fifteenth and Twenty-Fourth Amendments, the court rejected an argument that the
Twenty-Sixth Amendment prohibits any law distinguishing among voters on the basis of
age. The court instead held that Indiana’s accommodation of the elderly does not impose
a material burden on other citizens’ exercise of the right to vote, and therefore does not
violate the Twenty-Sixth Amendment (Tully v. Okeson).
• Energy: The Ninth Circuit held that the five-year statute of limitations for the Federal
Energy Regulation Commission (FERC) to bring a federal suit to enforce a civil penalty
assessment against an entity found to have violated the Federal Power Act runs from the
date when FERC assessed the penalty, not from when the alleged wrongdoing occurred
(FERC v. Vitol Inc.).
• Food & Drug: The Ninth Circuit affirmed a district court’s dismissal of claims under
state consumer protection laws and the federal Food, Drug, and Cosmetic Act (FDCA).
Plaintiffs alleged that certain statements of total protein quantity on a food item’s front
label, as determined by a food’s nitrogen content rather than amino acid content, were
false and misleading under the FDCA and state law. The court held that the FDCA’s
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implementing regulations explicitly authorize manufacturers to measure protein quantity
using the nitrogen method and further authorize manufacturers to use that measurement
to make certain front label protein content claims, as long as the product’s Nutrient Facts
Panel includes an adjusted protein percent daily value figure. The court further held that,
because FDCA implementing regulations explicitly authorize these statements, plaintiffs’
state law claims effectively sought to impose labeling requirements different from federal
requirements and were therefore expressly preempted (Nacarino v. Kashi Co.).
• Health: The Tenth Circuit reversed a grant of summary judgment in a dispute over
whether federal law preempts four provisions of an Oklahoma law regulating pharmacy
benefit managers (PBMs). The provisions at issue regulate PBMs’ retail pharmacy access
standards and prohibit PBMs from offering certain discounts, excluding certain providers
from preferred participation status, and denying, limiting, or terminating a provider’s
contract based on the employment status of certain employees. Distinguishing these
provisions from the Arkansas law at issue in the Supreme Court’s decision in Rutledge v.
Pharm. Care Mgmt. Ass’n, the court held that the Employee Retirement Income Security
Act of 1974 (ERISA) preempts each of the challenged provisions as applied to ERISA
plans. The court further held that Medicare Part D preempts the provision prohibiting
excluding certain providers from preferred participation status as applied to Medicare
Part D plans (Pharm. Care Mgmt. Ass’n v. Mulready).
• *Immigration: In rejecting an alien’s challenge to a Board of Immigration Appeals
(BIA) decision, the Sixth Circuit acknowledged a growing circuit split over when an alien
subject to a reinstated removal order may seek judicial review of the BIA’s subsequent
denial of the alien’s petition for withholding of removal. The Immigration and
Nationality Act permits an alien to appeal to a U.S. circuit court for review of a “final”
order of removal within 30 days of the order. The question before the court was whether
the 30-day clock for the petitioner, who sought to challenge the BIA’s denial of his claim
for withholding of removal, was linked to the completion of those proceedings or to the
earlier reinstatement of the alien’s removal order. Relying on circuit precedent, the Sixth
Circuit held that the 30-day clock was tied to the completion of the withholding-of-
removal proceedings, and therefore found it had jurisdiction to review the petitioner’s
claim. Still, the court upheld the BIA’s determination that the petitioner did not present a
credible claim for relief (Kolov v. Garland).
• Indian Law: The Eight Circuit held that the Parental Kidnapping Prevention Act (PKPA)
does not require Indian tribes to give full faith and credit to certain child custody
determinations of states. The court relied on the text of the PKPA, which does not include
tribes in the definition of “state.” The court further held that abrogation or limitation of a
tribe’s specific sovereign authority through federal statute requires clear congressional
intent. The court also observed that when Congress extends full-faith-and-credit
requirements to tribes by statute, it does so expressly (Nygaard v. Taylor).
• Tax: The Ninth Circuit affirmed a multimillion-dollar penalty against a defendant who
promoted tax-avoidance claims involving the charitable donations of timeshares, where
false statements were made in the timeshares’ appraisal. In so doing, the court considered
the scope of 26 U.S.C. § 6700, which proscribes the promotion of abusive tax shelters.
That statute uses a penalty computation method for violations involving false statements
based on “the gross income derived (or to be derived) from such activity by the person on
which the penalty is imposed.” The panel held that this provision looks to gross income
derived from the organization and sale of the tax scheme at large, not just gross income
derived from the false statements specifically (Tarpey v. United States).
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• Transportation: 49 U.S.C. § 44902(b) provides immunity to airlines in their decision to
refuse to transport passengers they feel are “inimical to safety.” The Fifth Circuit held,
among other things, that if a passenger’s protected status is the but-for cause of the
airline’s refusal of service, then the statute does not grant immunity to the airline from a
suit alleging discrimination under 42 U.S.C. § 1981. The circuit court reasoned that when
the passenger’s protected status is the but-for cause of the airline's decision to remove
them from a plane, the decision is not based on a fear that the passenger is inimical to
safety (Abdallah v. Mesa Air Group, Inc.).
Author Information
Michael John Garcia
Jason O. Heflin
Deputy Assistant Director/ALD
Legislative Attorney
Jimmy Balser
Legislative Attorney
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