Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (September 11, 2023–September 17, 2023)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(September 11, 2023–September 17, 2023)
September 18, 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
The Supreme Court’s next term is scheduled to begin October 2, 2023. The Court did not issue any
opinions or grant certiorari in any cases last week. On September 14, 2023, Justice Samuel Alito, acting in
his Circuit Justice capacity, issued an administrative stay giving the Supreme Court time to consider an
emergency application by the federal government in a case from the Fifth Circuit. The federal government
asks the Court to stay a preliminary injunction that, as modified by the Fifth Circuit, prevents a number of
persons in the White House, the Surgeon General’s Office, the Centers for Disease Control and
Prevention, and the Federal Bureau of Investigation from acting to affect social media platforms’ content-
moderation decisions. The administrative stay is set to end on September 22, 2023 (Murthy v. Missouri).
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.
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• Civil Procedure: A divided Ninth Circuit panel held that under Federal Rule of Civil
Procedure 54(d)(1), a district court has discretion to award costs to a prevailing party in a
suit brought under the Americans with Disabilities Act (ADA). Rule 54(d)(1) permits a
court to award costs to a prevailing party except when a “federal statute … provides
otherwise.” The court held that earlier circuit caselaw—which recognized that the ADA’s
fee- and cost-shifting provision limited the awarding of costs to instances where a
plaintiff’s action was frivolous, unreasonable, or without foundation—was effectively
overruled by a Supreme Court decision recognizing that fee- and cost-shifting laws do
not normally displace the background presumption that costs may be awarded to
prevailing parties (Garcia v. Gateway Hotel, L.C.).
• Congress: In a proceeding to resolve a Member’s objections to a warrant authorizing the
search of messages on his cell phone, the D.C. Circuit held that “informal factfinding”—
factfinding outside the context of an investigation authorized by a chamber of
Congress—does not fall categorically within or outside the scope of the Speech or Debate
Clause. Citing Gravel v. United States, the court remanded the case to the district court
for a communication-by-communication assessment of whether each message exchanged
with individuals in the executive branch or outside the federal government was an
“integral part” of the processes by which Members participate in chamber or committee
proceedings. Separately, the court held that communications with other Members about
whether to certify a presidential election or how to assess information relevant to
legislation about federal election procedures are legislative acts protected by the Speech
or Debate Clause (In re: Sealed Case).
• Consumer Protection: The D.C. Circuit vacated a Consumer Product Safety
Commission rule setting safety standards for operating cords on custom-made window
coverings. The court held that, among other errors, the Commission selected an arbitrary
effective date for the rule. The court acknowledged that, under 15 U.S.C. § 2058(g)(1),
consumer product safety standards have a presumptive 180-day effective date “unless the
Commission finds, for good cause shown, that a later effective date is in the public
interest.” The court held, however, that the directive in 15 U.S.C. § 2058(f)(3)(A)—to
find “that the rule (including its effective date) is reasonably necessary to eliminate or
reduce an unreasonable risk of injury”—requires that the Commission make a separate
reasonable-necessity finding about the effective date, even when imposing the
presumptive 180-day date (Window Covering Mfrs. Ass’n v. Consumer Prod. Safety
Comm’n).
• Firearms: The Tenth Circuit rejected a Second Amendment challenge to a provision in
the Gun Control Act, 18 U.S.C. § 922(g)(1), banning the possession of firearms by felons.
The court said that the outcome was controlled by earlier circuit precedent, which it
determined had not been limited or abrogated by the Supreme Court’s decision in N.Y.
State Rifle & Pistol Ass’n, Inc. v. Bruen, which endorsed a new framework for evaluating
firearm laws’ validity under the Second Amendment (Vincent v. Garland).
• Immigration: Joining the Ninth Circuit, a divided Second Circuit held that the
determination of whether an alien is removable due to a state conviction for a crime
involving moral turpitude for which “a sentence of one year or longer may be imposed,”
8 U.S.C. § 1227(a)(2)(A)(i), depends on the state law as it stood at the time of the
conviction. Although a state legislature had passed a law reducing the maximum penalty
for the petitioner’s conviction and the reduction had retroactive effect under state law, the
court held that the reduced penalty had no effect on the petitioner’s removability under 8
U.S.C. § 1227(a)(2)(A)(i) (Peguero Vasquez v. Garland).
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• *Immigration: The Fourth Circuit affirmed the Board of Immigration Appeals’ (BIA’s)
decision that a conviction for receipt of stolen property is a crime of moral turpitude if
knowledge that the goods were stolen is an element of the offense. On that basis, the
court held that the conviction rendered the petitioner ineligible for cancellation of
removal under 8 U.S.C. §§ 1229b(b)(1)(C) and 1227(a)(2)(A)(i). The Fourth Circuit
disagreed with a Ninth Circuit decision that held the receipt of stolen property is a crime
of moral turpitude only if it requires proof of intent to permanently deprive the owner of
the property. The Second, Third, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits
have come to the same conclusion as the Fourth Circuit on this point. The Fourth Circuit
also held that the BIA erred by declining to remand the case for a new grant of voluntary
departure. The court explained that 8 C.F.R. § 1240.26(c)(3)(i) unequivocally requires an
Immigration Judge to inform an alien of a bond amount and the deadline for posting the
bond before granting voluntary departure, which the judge had not done here (Cesar
Solis-Flores v. Garland).
• Immigration: The Ninth Circuit decided that the Supreme Court’s 2020 decision in
Barton v. Barr abrogated earlier circuit caselaw interpreting when a criminal offense
rendering an alien removable would trigger the “stop-time” rule under 8 U.S.C.
§ 1229b(d)(1). A lawful permanent resident (LPR) who commits a removable offense
may be eligible for cancellation of removal if certain criteria are met, including that the
LPR had at least seven years of continuous physical presence in the United States before
becoming removable. The Ninth Circuit recognized that, following Barton, an alien is
ineligible for cancellation of removal if the underlying offense was committed within
seven years of being admitted into the United States, even if the conviction came after the
seven-year period (Rudnitskyy v. Garland).
• Intellectual Property: The D.C. Circuit held that a non-profit group’s non-commercial
distribution of technical standards copyrighted by private standard-developing
organizations and later incorporated by reference into federal or state law was a fair use
under 17 U.S.C. § 107. The non-profit group, which disseminates free legal materials,
could thus continue making available for viewing, printing, and downloading on its
website copyrighted standards that are incorporated into law (American Soc'y for Testing
and Materials v. Public. Res..Org, Inc.).
• Religion: The Fifth Circuit held that the Religious Land Use and Institutionalized
Persons Act (RLUIPA) does not provide for money damages in suits against officials in
their individual capacities. The panel concluded that this decision was controlled by
binding circuit precedent, which the panel ruled had not been abrogated by a later
Supreme Court decision recognizing the availability of money damages in suits brought
against officials in their individual capacities under the Religious Freedom Restoration
Act (Landor v. Louisiana Dep't of Corr. & Pub. Safety).
• Religion: The Sixth Circuit held that plaintiffs are likely to succeed on their claim that a
township violated RLUIPA by requiring a special land use permit for installations on a
prayer trail—which included fourteen “Stations of the Cross,” a mural, and a stone altar.
The court held that the permit imposed a “substantial burden” on the plaintiffs’ religious
exercise under 42 U.S.C. § 2000cc(a)(1) because it resulted in two years of unexpected
administrative delays and expense. The court further held that the permitting requirement
was not narrowly tailored to advance a compelling interest, so the plaintiffs are entitled to
a preliminary injunction allowing them to restore the prayer trail (Cath. Healthcare Int’l,
Inc. v. Genoa Charter Twp.).
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•
• Religion: Sitting en banc, the Ninth Circuit held that plaintiffs are likely to succeed on
their claim that a school district violated the Free Exercise Clause of the First
Amendment when it revoked a religious group’s status as an official student club. The
school district had decided that the group violated the non-discrimination policies for
official student clubs because the group required its student leaders to take a pledge
stating, among other things, that “marriage is exclusively the union of one man and one
woman.” Based in part on findings that the school district selectively enforced its non-
discrimination policies against the religious group but not against other student groups
with discriminatory membership criteria, the court held that the policies were subject to
strict scrutiny and did not survive that scrutiny. The court reversed the district court’s
denial of a preliminary injunction to reinstate the club (Fellowship of Christian Athletes v.
San Jose Unified Sch. Dist. Bd. of Educ.).
• Speech: The Ninth Circuit reversed a district court’s denial of a preliminary injunction
and held that a California law, which prohibits advertising any “firearm-related product in
a manner that is designed, intended, or reasonably appears to be attractive to minors,”
likely violates the First Amendment. Assuming that the law regulates only commercial
speech and that intermediate scrutiny applies, the court explained that states can ban
truthful and lawful advertising only if the ban materially and directly advances a
substantial government interest and is no more extensive than necessary. The court held
that California has a substantial interest in reducing gun violence and unlawful use of
firearms by minors but, without evidence that any minor had unlawfully bought or used a
gun due to an advertisement, the law did not directly and materially further either goal
(Junior Sports Magazines, Inc. v. Bonta).
Author Information
Michael John Garcia
Peter J. Benson
Deputy Assistant Director/ALD
Legislative Attorney
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