Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (January 29–February 4, 2024)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(January 29–February 4, 2024)
February 5, 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
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Decisions of the Supreme Court
The Supreme Court did not issue any opinions or agree to hear any new cases last week.
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.
• Arbitration: The Fifth Circuit joined eight other circuits in holding that a court assessing
personal jurisdiction to confirm a foreign arbitral award under the New York Convention
on the Recognition and Enforcement of Arbitral Awards should consider the defendant’s
contacts with the forum state that relate to the underlying dispute, rather than only
considering contacts related to the arbitration itself. The court distinguished the case from
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the Supreme Court’s recent decision in Badgerow v. Walters on two grounds. First, the
court observed that Badgerow addressed when courts have subject-matter rather than
personal jurisdiction over arbitral awards. Second, the court noted that the Supreme
Court’s decision involved domestic arbitral awards governed by different provisions of
the Federal Arbitration Act than those concerning New York Convention-related awards
(Conti 11. Container Schiffarts-GMBH & Co. v. MSC Mediterranean Shipping Co. S.A.).
• Civil Rights: The Fifth Circuit affirmed in part and reversed in part a district court
judgment for an employee alleging race discrimination and retaliation by her employer.
In doing so, the court upheld a provision in the plaintiff’s employment contract that
shortened the time in which the employee could bring a lawsuit against the employer,
resulting in the claims she brought under 42 U.S.C. § 1981 being time-barred. Joining
several other circuits and approvingly citing a district court decision by future Justice
Ketanji Brown Jackson, the Fifth Circuit held that a six-month contractual limitation on
bringing suit is reasonable as applied to Section 1981 claims (Harris v. FedEx Corp.
Servs., Inc.).
• *Civil Rights: The Sixth Circuit held that employees asserting a violation of Title VII of
the Civil Rights Act of 1964 based on claims that they were subjected to a hostile work
environment in retaliation for filing a discrimination complaint must show “severe or
pervasive” harassment. Noting that the Sixth Circuit has repeatedly applied this standard,
the panel disagreed with the approach taken by the Eleventh Circuit, which requires a
worker to allege only conduct that would lead a reasonable employee to be dissuaded
from filing a discrimination complaint (Ogbonna-McGruder v. Austin Peay State Univ.).
• *Criminal Law & Procedure: The Fifth Circuit widened a circuit split over the meaning
of Section 403(b) of the First Step Act. Section 403(b) specifies how an amendment made
to 18 U.S.C. § 924(c) by Section 403(a) of the act applies to pending cases for violations
of 18 U.S.C. § 924(c), which in some cases enhances the penalties for the commission of
a “crime of violence” or drug trafficking crime committed with a firearm. Section 403(b)
provides that the act’s amendments apply to a covered offense committed before the act
was enacted if the sentence for that covered offense had not been imposed as of the date
of the act’s enactment. Disagreeing with the Third, Fourth, and Ninth Circuits and joining
the Sixth Circuit, the Fifth Circuit held that Section 403(b) does not apply to the post-
enactment resentencing of a defendant whose pre-enactment sentence was vacated after
the First Step Act became law (United States v. Duffey).
• Election Law: The First Circuit held that Section 8(i) of the National Voter Registration
Act (NVRA) preempts certain restrictions imposed by Maine on the use and
dissemination of state-generated reports that include identification information and voter
participation histories of registered voters. Section 8(i) provides for the public disclosure
of covered records in order to ensure the accuracy of each state’s lists of eligible voters.
The court held that Section 8(i) applies to Maine’s state-generated reports because they
contain information that could be used to evaluate whether the state was properly
reviewing and processing voter applications and registration information. The court held
that Maine’s dissemination restrictions were preempted to the extent they allowed the
reports to be used only to evaluate Maine’s compliance with the NVRA and not to
evaluate other states’ compliance with the NVRA. The court also held that Maine could
not prohibit the public release of the state-generated reports by requesters, but that,
consistent with federal law, Maine could redact unique or highly sensitive personal
information implicated by the public release (Pub. Interest Legal Found., Inc. v. Bellows).
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• Immigration: In denying a removable alien’s petition to review a Board of Immigration
Appeals (BIA) order declaring her ineligible to adjust her immigration status, the Fourth
Circuit deferred to the BIA’s long-standing interpretation of the governing statute. Under
8 U.S.C. § 1255(a)(2), an alien admitted or paroled into the United States may, at the
discretion of immigration authorities, have their immigration status adjusted to lawful
permanent resident if certain criteria are met, including that the applicant is “admissible
to the United States for permanent residence.” The Fourth Circuit affirmed the BIA’s
long-standing construction of this provision as requiring an applicant for adjustment to be
evaluated based on the same standard as an applicant for admission to the United States,
even when, as here, the alien was already present in the country. Under this standard, an
applicant must prove “clearly and beyond doubt” that he or she is admissible to the
United States to have their status adjusted, which the BIA concluded that the applicant
failed to do here (Nivar Santana v. Garland).
• Immigration: The Seventh Circuit held that the doctrine of consular nonreviewability
barred its review of federal officials’ decision to reject four Iranian nationals’ visa
applications on terrorism-related grounds. The doctrine generally precludes judicial
review of government decisions to issue or withhold a visa. Courts recognize a narrow
exception permitting a U.S. citizen to challenge a visa denial that burdens the citizen’s
constitutional rights. The Iranian applicants’ U.S. citizen family members invoked this
exception by alleging that the visa denials deprived them of a constitutional right to live
with their families. The Seventh Circuit held that the exception did not allow review in
this case. The court declined to reach the question of whether U.S. citizens have a
cognizable interest in living with their spouse. Even if such a right exists, the court
concluded that the challenge still failed because Supreme Court jurisprudence recognized
that the presumption against reviewability is not overcome when there are facially
legitimate and bona fide reasons for the visa denials, and, in this case, the court
concluded the government had provided such reasons for the visa denials (Pak v. Biden).
• Public Health: The Ninth Circuit held that the Public Readiness and Emergency
Preparedness Act (PREP Act) foreclosed a suit brought by Oregon state inmates against
the governor and the lead state health official on account of receiving lower prioritization
than state correctional officers during the state’s COVID-19 vaccination rollout. The
PREP Act grants covered persons immunity from claims relating to the administration or
use of covered countermeasures in response to a declared public health emergency. The
Ninth Circuit held that the PREP Act applied to the state officials’ vaccination
prioritization decisions because the “administration” of a covered countermeasure
includes the prioritization of that countermeasure when supply is limited. The court also
held that PREP Act immunity extends to suits brought under 42 U.S.C. § 1983 asserting
constitutional claims against state officials (Maney v. Brown).
Author Information
Michael John Garcia
Dorothy C. Kafka
Deputy Assistant Director/ALD
Legislative Attorney
Congressional Research Service
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