Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (February 12–February 19, 2024)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(February 12–February 19, 2024)
February 21, 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. On February 16,
2024, Justice Samuel Alito issued an administrative stay to give the Court time to consider an emergency
application to halt the Boy Scouts’ bankruptcy plan. The plan establishes a trust settlement for victims of
sexual abuse by Scout leaders and would preclude related claims against nonbankrupt, affiliated entities
who contributed to the trust settlement (Lujan Claimants v. Boy Scouts of Am.). This term in Harrington v.
Purdue Pharma, L.P., the Court is considering a similar issue involving a bankruptcy settlement by
Purdue Pharma related to its introduction of the opioid OxyContin into the pharmaceutical market.
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.
Congressional Research Service
https://crsreports.congress.gov
LSB11117
CRS Legal Sidebar
Prepared for Members and
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• Arbitration: The Ninth Circuit held that parties to an arbitration agreement clearly and
unmistakably delegated the question of arbitrability to an arbitrator by a provision
broadly incorporating the commercial arbitration rules produced by JAMS. While not
specifically referenced by the underlying arbitration agreement, JAMS Rule 11(b)
requires the question of arbitrability to be determined by the arbitrator (Patrick v.
Running Warehouse, LLC).
• Banking: The Fourth Circuit held that a plaintiff could bring suit under the Electronic
Fund Transfer Act (EFTA) against a bank that dispersed pandemic unemployment
assistance through prepaid debit cards. The plaintiff alleged he was entitled to damages
because the bank’s conduct and procedures for the use of his card violated the EFTA. The
court held that the plaintiff’s suit could proceed because, under EFTA-implementing
regulations, the prepaid debit card was a covered “government benefit account,” which is
defined as “an account established by a government agency for distributing government
benefits to a consumer electronically . . . .” (Mohamed v. Bank of Am. N.A.).
• *Civil Procedure: A divided Third Circuit held that a plaintiff did not satisfy
constitutional standing requirements to bring claims against a debt-collection company
under the Fair Debt Collection Practices Act for unauthorized third-party
communications. The decision involved application of TransUnion LLC v. Ramirez,
where the Supreme Court held that when a federal statute provides a plaintiff with a cause
of action based on a violation of federal law, a plaintiff establishes standing by
identifying a “concrete harm” that has a close relationship to a traditionally recognized
basis for a tort brought in American courts. Here, the panel majority observed that the
circuits disagree on this standard’s application. Some favor an element-based approach,
in which a plaintiff’s alleged harm must not lack any element essential for liability under
the comparator tort, while other circuits consider whether the harm alleged by the
plaintiff is the same kind of harm caused by the comparator tort. The panel majority
endorsed the latter approach and found that the plaintiff failed to show that the harm
caused by the defendant sharing her personal information with a mailing vendor had a
close relationship to a traditionally recognized harm (Barclift v. Keystone Credit Services,
LLC).
• Civil Rights: In affirming a lower court judgment for the defendant in an employment
discrimination suit brought under the Americans with Disabilities Act (ADA), a divided
Eleventh Circuit held that a viable claim requires that a plaintiff's disability be a “but-for”
cause of the alleged discriminatory action. The majority agreed with other circuits that
amendments made to the ADA in 2008—which provide that employers may not
discriminate against workers “on the basis of disability,” where the provision formerly
barred discrimination “because of” disability—did not alter long-standing judicial
recognition of the ADA imposing a “but-for” causation standard (Akridge v. Alfa Ins.
Co.).
• Energy: On remand from the Supreme Court, the D.C. Circuit confirmed a prior holding
that district courts are stripped of jurisdiction to review a Federal Energy Regulatory
Commission order once the record in a petition challenging that order is filed in a court of
appeals. In doing so, the court examined the text of the Natural Gas Act (15 U.S.C.
§ 717r(b)), which states “upon the filing of the record with” the court of appeals, that
court’s jurisdiction over the challenged order “shall be exclusive.” The Supreme Court
had vacated and remanded the D.C. Circuit’s previous judgment for further consideration
in light of its intervening opinion in Axon Enterprise, Inc. v. Federal Trade Commission.
The D.C. Circuit held that Axon did not alter its previous judgment because unlike Axon,
the present case involved explicit statutory jurisdiction stripping (Bohon v. FERC).

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• *Firearms: Joining the D.C. Circuit, the Third Circuit concluded that the Law
Enforcement Officers Safety Act of 2004 (LEOSA) provides certain retired federal and
state law enforcement officers with an enforceable right to carry a concealed firearm that
preempts conflicting state restrictions. Disagreeing with the Fourth Circuit, the court
reasoned that LEOSA reflects Congress’s clear and unambiguous intent to confer this
right upon retired officers because the statute focused on the individual right-holder. The
court also determined that LEOSA expressly preempts a New Jersey law to the extent that
it imposes additional conditions or restrictions upon a qualified retired law enforcement
officer’s ability to carry a concealed firearm (Fed. Law Enf’t Officers Ass’n v. Att’y Gen.
N.J.).
• Intellectual Property: The Federal Circuit upheld a U.S. Patent and Trademark Office
(USPTO) requirement introduced in 2019 that applications to register a trademark must
include the applicant’s “domicile” address (i.e., permanent residence or principal place of
business). The court rejected an argument that the Administrative Procedure Act
obligated USPTO to undertake notice-and-comment rulemaking to adopt this
requirement, holding the requirement is merely “procedural” because it does not affect
the substantive legal standards for trademark applications. The court also rejected an
argument that the domicile requirement is “arbitrary and capricious,” explaining that the
requirement helps to enforce a rule that foreign applicants, registrants, and parties to
trademark proceedings be represented by U.S.-licensed counsel (In re Chestek PLLC).
• Securities: The Eleventh Circuit determined that the appellant—who engaged in what is
often called “death spiral” financing for penny-stock companies—qualified as an
unregistered “dealer” under the Securities Exchange Act (15 U.S.C. § 78c(a)(5)(A)) and
therefore violated the Exchange Act’s registration requirement for dealers. The Exchange
Act defines a “dealer” as “any person engaged in the business of buying and selling
securities . . . for such person’s own account,” but does not include people who transact in
securities “but not as part of a regular business” (i.e., traders). The court concluded that
the appellant was a dealer due to his high volume of transactions and the kind of
transactions he made, including acquiring large quantities of stock for immediate resale
and bringing new shares to the market (SEC v. Almagarby).
• Separation of Powers: A divided Fifth Circuit held that third parties who provided
feedback on draft legislation to Texas state lawmakers could invoke legislative privilege
on lawmakers’ behalf to block disclosure of shared documents and communications.
Although legislative privilege is personal to the lawmaker, the majority relied on the
Supreme Court’s decision in Gravel v. United States, which held that the privilege may be
invoked on lawmakers’ behalf by legislative aides helping them perform legislative tasks.
The panel majority reasoned that outside parties could similarly invoke legislative
privilege for acts done for or at the direction of a lawmaker because such acts occur
within the legislative process and would be immune legislative conduct if the lawmaker
performed them himself (La Union del Pueblo Entero v. Abbott).
• Takings: The Federal Circuit affirmed the dismissal of a Fifth Amendment takings claim
brought by a company against the federal government based on Montana’s denial of its
permit application to lease its land for surface coal mining. The plaintiff alleged that, in
denying the permit, Montana acted either under coercion of the federal government or as
a federal agent because the permit denial was under a state law implementing the Surface
Mining Control and Reclamation Act (SMCRA). The SMCRA established a federal
regulatory scheme over surface coal mining and reclamation operations but gave states
exclusive jurisdiction over such activities upon enactment of state laws that complied
with minimal federal standards. The Supreme Court previously recognized that the

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SMCRA did not unduly coerce states into adopting minimum federal standards. The
appellate panel held that the SMCRA framework did not coerce a particular result in
individual permitting decisions made under those state laws. The panel also found no
evidence that Montana acted as a federal agent because the federal government did not
direct state authorities on whether to issue or deny the plaintiff’s permit application
(Great N. Properties, L.P. v. United States).
• Torts: The Sixth Circuit held that state parole board members were immune from money-
damage suits for actions taken in the board members’ official capacity, including the
scheduling of parole hearings. The Supreme Court recognized that common law judicial
immunity may extend to executive officials whose adjudicatory duties resemble those of
judges. The court determined that the parole board members’ adjudicatory functions were
similar to those of judges and existing safeguards deterred members from engaging in
unconstitutional conduct (Hughes v. Duncan).
• Veterans: A divided Federal Circuit panel held that the six-year statute of limitations in
the Barring Act (31 U.S.C. § 3702(b)(1)), a statute that provides a mechanism for settling
military-related claims, applies to claims for unpaid combat-related special compensation
(CRSC) governed by 10 U.S.C. § 1413a. The court disagreed with the district court’s
rationale—that the Barring Act did not apply to the settlement of the CRSC claims
because the CRSC statute was a “specific” statute that superseded the terms of the
Barring Act—because the CRSC statute only establishes who may be eligible for
payments and does not contain its own settlement mechanism that displaces the Barring
Act’s settlement mechanism (Soto v. United States).
Author Information

Michael John Garcia
Dorothy C. Kafka
Deputy Assistant Director/ALD
Legislative Attorney

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