Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (January 1–January 7, 2024)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (January 1–January 7, 2024)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(January 1–January 7, 2024)
January 9, 2024
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
the CRS Legal Update and receive regular notifications of new products and upcoming seminars by CRS
attorneys.
Decisions of the Supreme Court
The Supreme Court acted on three emergency applications last week:
• Election Law: The Supreme Court agreed to review the Colorado Supreme Court’s
decision that former President Donald Trump is constitutionally disqualified from holding
future office under Section 3 of the Fourteenth Amendment. The Colorado court held that
Mr. Trump had “engage[d] in an insurrection” that disqualified him under Section 3 from
holding any future U.S. office when he engaged in actions the state court found were
intended to prevent Congress from certifying Joe Biden as the winner of the 2020
presidential election. The state court initially directed the former President to be excluded
from the state’s 2024 presidential primary ballot. After the Supreme Court agreed to
review the case, the Colorado Secretary of State announced that Mr. Trump would be
listed on the primary ballot but reportedly said the Court’s decision may determine
whether votes cast for him are ultimately counted. In reviewing the state court’s decision,
the Supreme Court may consider, among other things, whether Section 3 is judicially
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enforceable without implementing legislation from Congress; whether a judicial
determination of the former President’s eligibility for office is precluded by the political
question doctrine; whether Section 3 applies to the Office of the President; and the types
of activities that constitute an “insurrection” under Section 3. The Court has scheduled
oral arguments for February 8, 2024 (Trump v. Anderson).
• Health: The Supreme Court agreed to consider two consolidated cases on whether
the Emergency Medical Treatment and Labor Act (EMTALA) preempts aspects of an
Idaho law that makes it a crime for a health care provider to perform an abortion except
in a narrow set of circumstances. EMTALA generally requires Medicare-participating
hospitals with emergency departments to provide (1) appropriate medical screening to an
individual requesting examination or treatment to determine whether an emergency
medical condition exists; and, if such a condition exists, (2) necessary treatment to
stabilize the individual before any transfer to another medical facility can take place.
Following the Supreme Court’s decision in Dobbs v. Jackson Women’s Health
Organization, the Department of Health and Human Services (HHS) issued guidance
providing that, under EMTALA, a physician “must” perform an abortion on a patient if
the abortion constitutes the stabilizing treatment necessary to resolve an emergency
medical condition. The Court is asked whether EMTALA requires covered entities to
perform abortions in circumstances criminalized under the Idaho law. The Court’s order
granting certiorari allows the Idaho law to be enforced pending a final ruling, staying a
district court’s preliminary injunction that blocked enforcement against EMTALA-
covered entities who perform abortions in cases of medical emergency. The Court
announced that arguments will be held later this term (Idaho v. United States; Moyle v.
United States).
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 Sixth Circuit held that a U.S. Trustee’s motion to dismiss a bankruptcy
petition is not a “civil action” under the Equal Access to Justice Act (EAJA) and affirmed
the denial of an EAJA request. A U.S. Trustee, believing that an individual filing for
bankruptcy was abusing the system, intervened on behalf of the United States in the
otherwise uncontested bankruptcy proceeding by filing a motion to dismiss the
bankruptcy petition. Upon reviewing additional evidence, the U.S. Trustee withdrew the
motion and the bankruptcy court subsequently discharged the petitioner’s debt. After
prevailing over the U.S. Trustee’s motion to dismiss, the petitioner filed a request to
recover costs and fees under EAJA. EAJA authorizes a court to award fees and costs to
the winning party that the party incurred in any “civil action brought by or against the
United States.” The circuit court held that (1) a motion to dismiss a bankruptcy petition is
not a “civil action”; and (2) even if the court found a motion to dismiss a bankruptcy
petition to be “a civil action,” Congress did not unambiguously waive sovereign
immunity to allow for bankruptcy petitioners to recover fees under EAJA for successfully
defending against such a motion (Teter v. Baumgart).
• Criminal Law & Procedure: The D.C. Circuit affirmed a defendant’s convictions under
18 U.S.C. § 1752(a)(2) and 40 U.S.C. § 5104(e)(2)(D) for disorderly or disruptive
conduct in connection with his unauthorized presence in the U.S. Capitol on January 6,
2021. The circuit court held that prohibited conduct under the statutes is context-specific

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but covers acts that endanger public safety, create a public disturbance, or interfere with
usual proceedings. Although the trial evidence showed the defendant had not engaged in
violent or destructive behavior while in the Capitol, the circuit court affirmed the
defendant’s convictions after concluding the jury could have reasonably found that his
unauthorized presence as part of an unruly mob contributed to the disruption of
Congress’s electoral certification and jeopardized public safety (United States v. Alford).
• Energy: The Ninth Circuit denied a petition for a rehearing en banc and issued an
amended opinion holding that a Berkeley, CA, municipal building ordinance that
prohibited natural gas piping into new buildings—thus rendering gas appliances
unusable—was preempted by the Energy Policy and Conservation Act (EPCA). EPCA
states that “no State regulation concerning the energy efficiency, energy use, or water use
of [certain covered consumer products] shall be effective with respect to such product,”
unless the regulation meets a listed exception. The divided circuit panel rejected the city’s
arguments that EPCA’s preemption clause only covers regulations that impose standards
directly on gas appliances themselves. The court held that, by effectively preventing
appliances from using natural gas, the building code’s prohibition against installing gas
piping in newly constructed buildings conflicted with EPCA’s preemption provision. The
amended opinion clarified that the holding only addresses regulations relating to natural
gas usage where the gas is otherwise already available at the premises (California Rest.
Ass’n v. City of Berkeley).
• *Food & Drug: Recognizing a split from other circuits, a divided en banc Fifth Circuit
held that the Food and Drug Administration (FDA) acted arbitrarily and capriciously
when it denied electronic cigarette manufacturers’ premarket tobacco applications
(PMTAs) to sell flavored tobacco products. The Fifth Circuit held that (1) FDA did not
provide adequate notice of how the PMTAs would be evaluated; (2) FDA failed to
acknowledge and explain its change in position from earlier agency guidance when it
denied the PMTAs; (3) FDA failed to consider the applicants’ good-faith reliance on the
agency’s prior guidance; and (4) FDA relied on post hoc rationalizations in defending its
denial of the PMTAs. The Fifth Circuit joins the Eleventh Circuit, which reviewed similar
PMTA denials, in holding FDA’s actions to be arbitrary and capricious and splits with the
Second, Third, Fourth, Seventh, and Ninth Circuits, which previously upheld FDA’s
actions in denying other similar electronic cigarette PMTAs (Wages & White Lion Invs.,
LLC v. FDA).
• Health: The Fifth Circuit upheld a permanent injunction preventing HHS from enforcing
EMTALA pursuant to agency guidance interpreting the act to require a covered entity to
perform an abortion on a patient when the abortion constitutes stabilizing treatment
necessary to resolve an emergency medical condition. The circuit court held that HHS
exceeded its statutory authority because EMTALA does not authorize HHS to require
physicians to perform specific medical procedures, such as an abortion. In upholding the
injunction, the Fifth Circuit also concluded that the guidance should have been
promulgated through notice and comment procedures, as required by 42 U.S.C. §
1395hh(a)(2) of the Medicare Act, and that EMTALA does not preempt a Texas law that
prohibits abortion except in narrow circumstances. The permanent injunction blocks HHS
from enforcing EMTALA in accordance with the guidance in Texas or against members
of the plaintiff organizations. The Fifth Circuit issued the decisions days before the
Supreme Court agreed to consider a different case, discussed above, on whether
EMTALA requires covered entities to provide abortions in certain circumstances (Texas v.
Becerra).

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• Labor & Employment: The Second Circuit held that a New York law protecting
workers at large fast-food chains from arbitrary termination or reduction in hours was not
preempted by the National Labor Relations Act (NLRA) and did not violate the Dormant
Commerce Clause. The court held that the law was not preempted by the NLRA’s
implicit bar on state interference in the collective bargaining process because the state
law’s substantive labor standards applied to covered employers regardless of whether
their workforce was unionized. The court also held that the state law did not violate the
dormant Commerce Clause because it did not facially discriminate against interstate
commerce, even if all or nearly all covered entities were headquartered out of state, and
any burdens imposed on interstate commerce were incidental and not clearly excessive in
relation to the law’s local benefits (Rest. L. Ctr. v. City of New York).
• Labor & Employment: The Sixth Circuit held that an employee of a construction
services company was not an employee of a common carrier under the Federal
Employers’ Liability Act (FELA), even though the company and a common-carrier
railroad were both subsidiaries of a parent entity. FELA provides the exclusive remedy
for employees of a railroad common carrier to recover damages for injuries occurring
during their employment. Although the court indicated that it might consider a parent
company liable under FELA if there was evidence that the corporate structure was set up
to evade application of FELA, the court rejected the worker’s argument that the parent
corporation and all of its subsidiaries represent a “unitary railroad system” and that the
plaintiff was therefore an employee of a common carrier (Mattingly v. R.J. Corman R.R.
Grp., LLC).
• Public Benefits: The Ninth Circuit joined the Eleventh Circuit in upholding a 2017
Social Security Administration regulation that abrogated the treating-physician rule that
had been used by several circuits. The earlier, judicially created treating-physician rule
directed administrative law judges (ALJs) adjudicating disability claims under the Social
Security Act (SSA) to defer to the medical opinion of claimants’ treating physicians. The
2017 regulation instead directs ALJs to accord the treating physician’s opinion no
deference and weigh medical opinions based on their persuasiveness. The Ninth Circuit
held that the 2017 rule was a valid exercise of the Social Security Commissioner’s
authority under the SSA and complied with administrative rulemaking requirements
(Cross v. O’Malley).
• *Separation of Powers: The Eleventh Circuit held, in reviewing a denial of Social
Security disability insurance benefits, that there is no Appointments Clause violation
when a decision made by an unconstitutionally appointed ALJ is vacated on the merits
and remanded to the same adjudicator, who has since been properly appointed. Although
the Eleventh Circuit acknowledged that a different ALJ would have to hear the claim on
remand if the matter were vacated and remanded due to an Appointments Clause
violation, the court held that the same ALJ is permitted to re-adjudicate the claim if the
ALJ’s initial decision had been vacated and remanded on the merits of the claim. The
Eleventh Circuit acknowledged a split with the Fourth and Ninth Circuits, which had
previously held that a different ALJ must review the claim on remand to avoid an
Appointments Clause violation (Raper v. Comm’r of Soc. Sec.).

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Author Information

Michael John Garcia
Daniel T. Shedd
Deputy Assistant Director/ALD
Legislative Attorney

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