Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (February 26–March 3, 2024)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (February 26–March 3, 2024)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(February 26–March 3, 2024)
March 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
general distribution products. Members of Congress and congressional staff may click here to subscribe to
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attorneys.
Decisions of the Supreme Court
The Supreme Court granted certiorari in one case last week:
• Separation of Powers: The Court granted certiorari in a case from the D.C. Circuit to
address the question of whether and to what extent a former President is immune from
criminal prosecution for conduct that is alleged to involve official acts committed while
he was in office. The question is raised in connection with former President Donald
Trump’s prosecution in federal court for various actions he allegedly took while in office
to challenge the results of the 2020 presidential election. As described in this edition of
the Congressional Court Watcher, the D.C. Circuit held that the former President’s
prosecution was not barred by executive immunity. The Court directed the D.C. Circuit to
continue to withhold issuing the mandate for its decision until the Court issues its
decision (Trump v. United States).
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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.
• Civil Procedure: The Fifth Circuit held that the “local controversy” exception to the
Class Action Fairness Act (CAFA) did not apply to an oil-and-gas class royalties dispute
and ordered the district court to reinstate this case on its docket instead of remanding to a
Texas state court. CAFA gives federal courts jurisdiction over many class actions
involving multistate parties, subject to certain exceptions, including for local
controversies where the “principal injuries . . . were incurred in the State in which the
action was originally filed.” The Fifth Circuit held that this exception did not apply to the
case on appeal, which involved claims of economic injury by a class of Texas and non-
Texas residents. The court reasoned that the plaintiffs sustained their economic injuries in
their states of residence, meaning some class members “incurred” their injuries outside
Texas. The court rejected the plaintiffs’ argument that the exception’s reference to
“principal injuries” requires only that most of the class members sustained their injuries
in the state where the action was filed, instead holding that all plaintiffs’ “principal
injuries” must have occurred in the state where the action was filed for the exception to
apply. As some plaintiffs’ principal injuries took place outside of Texas, the court
accordingly held that CAFA’s exception did not apply (Cheapside Minerals, Ltd. v. Devon
Energy Prod.).
• *Environmental Law: A divided D.C. Circuit panel partially vacated a 2015
Environmental Protection Agency (EPA) rule directing most states to revise their state
implementation plans (SIPs) under the Clean Air Act (CAA) so that pollutants emitted
during periods when a facility starts up, shuts down, or malfunctions (SSM periods)
would not be exempted from state emission requirements. To begin, the circuit court held
that the EPA could call for SIP revisions if it concluded that the SIPs were substantially
inadequate under the CAA without having to first determine whether the SIPs had
adverse effects. The panel majority ruled, however, that the EPA did not show that the
CAA required states to apply uniform standards for SSM and non-SSM emissions. The
majority vacated portions of the EPA rule directing revision of SIPs containing either
automatic or discretionary exemptions for SSM emissions or that provided an affirmative
defense under state law to a facility that failed to adhere to state emission standards
because of SSM emissions. The court upheld the rule’s direction that states not limit state
courts’ discretion to impose civil monetary penalties on entities found to violate SIP
requirements. Splitting with the Fifth Circuit, the court held that this liability limitation
conflicted with the CAA (Env’t Comm. of Fl. Elec. Power Coordinating Grp. v. EPA).
• *Environmental Law: The Tenth Circuit granted a motion to transfer to the D.C. Circuit
petitions challenging an EPA rule disapproving 21 SIPs under the CAA. Acknowledging
a split with the Fourth, Fifth, and Sixth Circuits, the court held that EPA’s rule is a
“nationally applicable” final action, rather than a “locally or regionally applicable” final
action, and therefore the CAA’s judicial review provision permits review of the rule only
in the D.C. Circuit. Although the petitions sought review only of EPA’s disapproval of
two states’ plans, the court ruled that the nature of the agency’s action, rather than the
scope of the petitioners’ challenges, was the appropriate basis for determining the
appropriate venue (Oklahoma v. EPA).
• *Food & Drug: The Tenth Circuit denied two e-cigarette liquid manufacturers’ petitions
for review of the Food and Drug Administration’s (FDA’s) rejection of their applications

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to market flavored e-cigarette liquids. Joining several other circuits but breaking with the
Fifth Circuit, the court rejected arguments that various statements by FDA about the
application process were misleading and held that FDA did not act arbitrarily and
capriciously in rejecting the e-cigarette liquid applications. Again joining with several
other circuits but breaking with the Fifth and Eleventh Circuits, the court further held that
any error made in overlooking the manufacturers’ marketing plans was harmless (Elec.
Clouds, Inc. v. FDA).
• *Immigration: A divided Seventh Circuit issued the latest ruling in a growing circuit
split over when an alien subject to a reinstated removal order may seek judicial review of
a later administrative denial of that alien’s eligibility to pursue withholding of removal.
Under 8 U.S.C. § 1252(b)(1), a “final” order of removal may be appealed to a U.S. circuit
court within 30 days of the date of the order. Joining the Fifth, Sixth, Ninth, and Tenth
Circuits, but disagreeing with the Second and Fourth Circuits, a majority of the Seventh
Circuit panel held that the 30-day clock is tied to the later relief proceedings, not the
earlier reinstatement of removal order (F.J.A.P. v. Garland).
• Indian Law: The Ninth Circuit affirmed the district court’s determination that the
Suquamish Tribal Court had subject-matter jurisdiction over the Tribe’s breach-of-
contract lawsuit for insurance claims related to COVID-19 pandemic business closures.
Although the Tribe and its businesses brought the insurance claims in connection with
tribal properties on tribal land, the insurance companies were neither part of the Tribe nor
physically present on the Tribe’s reservation. The court observed, however, that the
relevant insurance program was tailored for and exclusively offered to tribes, and the
claims related directly to tribal lands. In Montana v. United States, the Supreme Court
recognized two exceptions to the general restrictions on tribes’ inherent sovereign
authority over nonmembers on reservation lands; the first of those exceptions affirmed
tribal jurisdiction over the activities of nonmembers who enter into consensual
relationships with a tribe or its members. The Ninth Circuit concluded that the insurance
companies had formed such consensual relationships in this case, enabling the tribal court
to assert jurisdiction over the claims (Lexington Ins. Co. v. Smith).
• Labor & Employment: The D.C. Circuit denied a corporation’s petition for review of a
National Labor Relations Board (NLRB) decision, which found that the corporation
violated the National Labor Relations Act in its dealings with an incumbent union
representing employees of a hospital the corporation acquired. The NLRB’s decision
relied on the “successor bar” rule, an established NLRB precedent providing that an
incumbent union is entitled to an irrebuttable presumption of majority status for a
reasonable period of time following a successor employer’s voluntary recognition of the
union. The court rejected arguments that (1) NLRB precedent underlying the successor
bar rule constituted an unjustified departure from the board’s prior precedent, (2) the bar
is contrary to statute, and (3) the bar is contrary to Supreme Court precedent (Hosp.
Menonita de Guayama, Inc. v. NLRB).
• Labor & Employment: The Eighth Circuit held that an employee claiming
discrimination by her employer in violation of 30 U.S.C. § 815(c)(1) for having exercised
a covered statutory right must demonstrate that the discrimination was “because of”
having exercised the statutory right. A mine employee who was a designated miners’
representative had exercised her right under 30 U.S.C. § 813(f) to a “walkaround” with
Mine Safety and Health Administration inspectors during an inspection. That provision
directs that miners’ representatives who are employed by the mine operator “shall suffer
no loss of pay during the period of his participation in the inspection.” The employee was
paid a lower rate for the walkaround time than she would have received as a mobile

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equipment operator (MEO) because the company determined she was unavailable for an
MEO job during that time. The court concluded that the lower pay had to be “because of”
exercising the statutory right and that the company’s decision was based on unavailability
for the MEO job, rather than the reason the employee was unavailable. Accordingly, the
court held that while the mine operator violated Section 813(f), there was not sufficient
evidence that it violated Section 815(c)(1) (Continental Cement Co. v. Sec’y of Labor).
• Speech: The Ninth Circuit affirmed a district court’s denial of a preliminary injunction to
two Oregon state Senators who were disqualified from appearing on the 2024 ballot after
they engaged in a legislative walkout in protest of the Senate’s alleged failure to comply
with certain Oregon laws. The Oregon Secretary of State determined the Senators were
ineligible for the 2024 ballot pursuant to an Oregon constitutional amendment that
disqualifies any state legislator who accrued 10 or more unexcused absences. The
Senators sought a preliminary injunction under 42 U.S.C. § 1983, asserting a First
Amendment retaliation claim. Relying on the Supreme Court’s reasoning in Nevada
Commission on Ethics v. Carrigan that legislators do not have a right to use their official
powers for expressive purposes, the Ninth Circuit concluded that the Senators could not
show a likelihood of succeeding on the merits because their walkout was exercising the
power of the legislator’s office and therefore not protected activity under the First
Amendment (Linthicum v. Wagner).
• Veterans: The Federal Circuit affirmed a decision of the U.S. Court of Appeals for
Veterans Claims holding that the Board of Veterans’ Appeals (Board) had jurisdiction to
review adverse eligibility determinations under the Department of Veterans Affairs (VA)
Program of Comprehensive Assistance for Family Caregivers (Program). The court
rejected an argument that such decisions are a “medical determination” under a provision
in the Program’s implementing statute, 38 U.S.C. § 1720G(c)(1), and therefore outside
the Board’s appellate jurisdiction as defined by VA regulation. The court instead held that
38 U.S.C. § 1720G(c)(1) exempts from Board review Program decisions relating to the
need for or appropriateness of particular types of treatment but not other types of
decisions (Beaudette v. McDonough).

Author Information

Michael John Garcia
Jason O. Heflin
Deputy Assistant Director/ALD
Legislative Attorney

Erin H. Ward

Coordinator of Research Planning/ALD

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