Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (February 5–February 11, 2024)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(February 5–February 11, 2024)
February 13, 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 issued opinions in two cases last week:
• Labor & Employment: The Court unanimously held that whistleblowing protections
under the Sarbanes-Oxley Act for reporting criminal fraud or securities law violations by
an employer may be invoked when the whistleblowing activity was a contributing factor
in an unfavorable personnel action against the whistleblower. The Court held, however,
that the employee need not show that the employer acted with retaliatory intent on
account of the whistleblowing (Murray v. UBS Sec., LLC).
• Sovereign Immunity: The Court unanimously held that the Fair Credit Reporting Act—
which defines a “person” subject to the act’s substantive requirements to include a
“government or governmental subdivision or agency”—unambiguously waives the
federal government’s sovereign immunity. The United States may therefore be held liable
for civil damages under the act (Dep’t of Agric. Rural Dev. Rural Hous. Serv. v. Kirtz).
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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.
• Agriculture: The Eleventh Circuit held that the Federal Insecticide, Fungicide, and
Rodenticide Act (FIFRA) does not preempt a plaintiff’s Georgia state law failure-to-warn
tort claim against the manufacturer of the weedkiller Roundup related to the potentially
carcinogenic effects of glyphosate, the product’s active ingredient. FIFRA expressly
preempts state labeling or packaging requirements for pesticides that are “in addition to
or different from” federal requirements (7 U.S.C. § 136v), but it does not expressly
preempt either additional state remedies for violations of federal law or state-law
requirements that do not relate to pesticide labeling or packaging. The court reasoned that
both FIFRA and Georgia common law require pesticide manufacturers to warn users of
potential risks to health and safety. As a result, the court held that the plaintiff’s state-law
failure-to-warn claim was not preempted because, although the claim related to labeling
or packaging, the duties the state law cause of action would impose are fully consistent
with FIFRA. The court also held that FIFRA did not impliedly preempt the failure-to-
warn claim because Roundup’s manufacturer did not establish that it could not have
complied with both state and FIFRA requirements (Carson v. Monsanto Co.).
• *Arbitration: The Ninth Circuit split with the Second Circuit over the manner of proper
service of a motion to confirm an arbitral award on adverse parties who are not available
for service in the United States. The Ninth Circuit reasoned that Section 9 of the Federal
Arbitration Act (FAA) did not govern service because the adverse party would not be
amenable to service by any of the means listed thereunder. As a result, the Ninth Circuit
held that Section 6 of the Federal Arbitration Act governed instances where Section 9
does apply. Section 6 requires that any application to the district court be made “in the
manner provided by law for the making and hearing of motions.” The Ninth Circuit
concluded that Federal Rule of Civil Procedure 5, which governs the service of motions
filed in federal court, applies to service in these cases. The Second Circuit has held that
Federal Rule of Civil Procedure 4, which governs the service of a summons and
complaint in federal court, applies (Voltage Pictures, LLC v. Gussi, S.A. de C.V.).
• Banking: Joining other circuits, the Sixth Circuit held that, to establish civil liability for
“willfully” violating the Bank Secrecy Act’s annual reporting requirements involving
foreign bank accounts containing $10,000 or more, the government must show the
violation was committed knowingly or recklessly. The court acknowledged that it had
interpreted “willfully” more narrowly in corresponding provisions of the Bank Secrecy
Act establishing criminal liability for violations of reporting requirements, for which the
court had required that the defendant acted with “full knowledge that his conduct was
unlawful.” The court noted that the intent sufficient for an act to be considered willful
differs in the civil and criminal contexts. In support of its position, the court observed that
the Supreme Court has interpreted “willfully” differently for civil and criminal provisions
of the Fair Credit Reporting Act (United States v. Kelly).
• Civil Rights: The Eleventh Circuit held that sovereign immunity bars retaliation claims
against state governments under Title V of the Americans with Disabilities Act (ADA)
when brought in conjunction with employment discrimination claims under ADA Title I.
The Supreme Court previously determined in Board of Trustees of University of Alabama
v. Garrett that sovereign immunity barred Title I claims against state governments. The
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Eleventh Circuit reasoned that a Title V claim based on an underlying Title I claim must
also be barred (Dupree v. Owens).
• Criminal Law & Procedure: The Eighth Circuit held that while 21 U.S.C
§ 841(b)(1)(A) requires a federal district court to sentence certain controlled substance
offenders to at least five years’ supervised release, a court retains discretion under 18
U.S.C. § 3583(e)(1) to end the term of supervised release early if certain conditions are
met. The court held that a 2002 amendment to Section 841(b)(1)(A), specifying that a
sentencing court must impose a five-year term of supervised release “[n]otwisthanding
Section 3585 of Title 18,” does not prevent the court from deciding to end the period of
supervised release early (United States v. Lester).
• Labor & Employment: The Ninth Circuit joined the First, Second, and D.C. Circuits in
holding that the whistleblower antiretaliation provisions of the Sarbanes-Oxley and
Dodd-Frank Acts do not apply extraterritorially because Congress did not “affirmatively
and unmistakably” instruct that the provisions should apply to foreign conduct. In
considering whether this case nevertheless involved a permissible domestic application of
the statutes, the court concluded that the relevant conduct occurred outside of the United
States. The plaintiff was a Canadian employee, residing in Canada, who alleged that his
Canadian employer retaliated against him for engaging in protected conduct. The court
rejected the plaintiff’s argument that his access of his employer’s web servers, which
were located in California, amounted to domestic conduct. The court, thus, dismissed
both the Sarbanes-Oxley and Dodd-Frank claims (Daramola v. Oracle Am., Inc.).
• Maritime Law: A divided Ninth Circuit held that 46 U.S.C. § 30527(a), which bars
certain liability waivers in regulations or contracts for a “vessel transporting passengers
between ports in the United States, or between a port in the United States and a port in a
foreign country,” does not apply when a vessel transports passengers away from and back
to a single U.S. port without stopping at any other port (Ehart v. Lahaina Divers, Inc.).
• Separation of Powers: The D.C. Circuit rejected former President Donald Trump’s
claim that his prosecution in federal court for various actions he allegedly took while in
office to challenge the results of the 2020 presidential election was barred by executive
immunity, the Impeachment Judgments Clause, and the Double Jeopardy Clause. First,
the court held that the separation of powers doctrine does not bar federal criminal
prosecution of a former President for official acts that violate generally applicable laws.
Executive immunity is rooted in the constitutional tradition of the separation of powers
and may immunize the President from certain lawsuits challenging lawful acts within his
discretion. The court reasoned that the former President lacked lawful discretionary
authority to violate federal criminal law, and therefore is subject to prosecution for those
actions. Second, the court concluded that functional policy considerations do not
immunize the former President. Executive immunity is intended to allow a President to
act “fearlessly and impartially” without fear of later prosecution and to prevent meritless
and harassing litigation. The court weighed these concerns and ultimately concluded that
the interest in criminal accountability, as well as the public’s interest in democratically
selecting its President, outweigh the potential risks of chilling presidential action and
permitting vexatious litigation. Third, the court decided that the Impeachment Judgments
Clause does not require that former Presidents be impeached and convicted for conduct
before they may be criminally prosecuted for it. Fourth, the court held that the former
President’s impeachment acquittal does not bar his subsequent prosecution under the
Double Jeopardy Clause because impeachment is not a criminal process and cannot result
in criminal punishment (United States v. Trump).
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• Speech: In consolidated cases, the Third Circuit considered claims under 42 U.S.C. §
1983 and a state law equivalent by two New Jersey parents who were arrested after
refusing to wear masks to oppose mask mandates in schools. The parents each had
alleged their arrests were retaliation for exercising their First Amendment rights. The
Third Circuit affirmed the district court’s dismissal of one parent’s claim for failure to
state a claim because the parent failed to allege constitutionally protected conduct, as
required for a claim under Section 1983 and the state equivalent. The Third Circuit held
that there is no First Amendment right to refuse to wear a mask as required by valid
health and safety orders issued during an official public health emergency. The panel
reasoned that the parent’s decision to refuse to wear a mask was not inherently expressive
conduct because a reasonable observer would not understand her message simply from
seeing her unmasked. The court decided that her action was susceptible to multiple
interpretations, and, unlike a burning flag, a mask is not inherently symbolic but rather
protective equipment (Falcone v. Dickstein).
Author Information
Michael John Garcia
Dorothy C. Kafka
Deputy Assistant Director/ALD
Legislative Attorney
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