Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (May 6–May 12, 2024)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(May 6–May 12, 2024)
May 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
general distribution products. Members of Congress and congressional staff may click here to subscribe to
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Decisions of the Supreme Court
Last week, the Supreme Court issued opinions in two cases for which it heard arguments:
• Criminal Law & Procedure: In a 6-3 decision, the Court held that in civil forfeiture
cases involving personal property, the Due Process Clause does not require a preliminary
hearing to determine whether the seized property should be held pending the ultimate
civil forfeiture hearing, only that the civil forfeiture hearing be held in a timely manner
(Culley v. Marshall).
• Intellectual Property: The Court decided in a 6-3 ruling that the Copyright Act’s three-
year statute of limitations does not impose a time limit on the recovery of damages
stemming from copyright infringements occurring more than three years before a lawsuit
was filed so long as the claim itself is timely. Notably, the Court assumed—but did not
decide—that the “discovery rule” used by the lower court (which holds that a claim
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accrues not when an infringement occurred but when the plaintiff discovered or
reasonably should have discovered it) applied (Warner Chappell Music, Inc. v. Nealy).
Decisions of the U.S. Courts of Appeals
Topic headings marked with an asterisk (*) indicate cases where 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 Rights: The Second Circuit affirmed the dismissal of a plaintiff’s suit against a
state government entity under Title II of the Americans with Disabilities Act and, in so
doing, held that emotional distress damages are unavailable under Title II. The court
reasoned that because Title II expressly incorporates remedies afforded under the
Rehabilitation Act of 1973, and the Supreme Court had held that the Rehabilitation Act
does not allow for emotional distress damages, such damages were also unavailable
under Title II (Doherty v. State Univ. of New York).
• Communications: A divided Second Circuit affirmed a lower court’s dismissal of a suit
brought by a recipient of an unsolicited text message from the fast-food chain Subway
under the Telephone Consumer Protection Act (TCPA), agreeing with the lower court that
the text message did not fall under the scope of the statute. The TCPA generally prohibits
calls to persons using an “automatic dialing system” or “artificial or prerecorded voice”
without their prior consent. The panel first held that the text message was not an
“artificial and prerecorded voice.” After reviewing the TCPA’s definition of “automatic
telephone dialing system,” the panel concluded that Subway’s method of contacting the
plaintiff was not covered. The majority held that the TCPA’s “automatic telephone dialing
system” definition only covers systems that generate and dial random or sequential
telephone numbers. The majority held this definition does not cover autodialing systems
like Subway’s that rely on a preexisting list that was not automatically or randomly
generated but instead was drawn from other sources, such as customers voluntarily
sharing their phone numbers (Soliman v. Subway Franchisee Advert. Fund Tr., Ltd.).
• Criminal Law & Procedure: The D.C. Circuit affirmed the conviction of Stephen
Bannon for contempt of Congress under 2 U.S.C. § 192, on account of “willfully” failing
to respond to a congressional subpoena. The House Select Committee to Investigate the
January 6th Attack on the United States Capitol had subpoenaed Bannon, a former
advisor to President Donald Trump, to testify and produce documents related to the
events surrounding the 2020 presidential election certification, which occurred while
Bannon was a private citizen. The panel rejected Bannon’s argument that Section 192 did
not apply to his conduct because he chose not to respond to the subpoena on the advice of
his counsel. Citing circuit precedent, the panel held that Section 192 requires only that a
person deliberately and intentionally violate the subpoena, which had occurred here. The
panel also rejected Bannon’s argument that he had reasonably relied on communications
from the counsel of former President Trump (who had left office at the time the directive
was allegedly given) and on legal opinions from the Department of Justice (DOJ). The
panel agreed with the district court that none of the communications or DOJ opinions
purported to authorize Bannon to refuse to produce documents or testify in response to
the subpoena (United States v. Bannon).
• Criminal Law & Procedure: The Seventh Circuit held that a continuing criminal
enterprise (CCE) conviction under 21 U.S.C. § 848(a) is not a “covered offense” for
purposes of the First Step Act and thus the defendant was not eligible for a sentencing
reduction under the Act. Section 404 of the Act gives federal courts discretion to reduce
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the sentence of a defendant convicted of a “covered offense.” In Terry v. United States,
the Supreme Court clarified that a “covered offense” is one for which the Fair Sentencing
Act modified the specific statutory penalties for that offense. Applying Terry, the Seventh
Circuit agreed with the Fourth and Eighth Circuits that the Fair Sentencing Act did not
modify the statutory penalties for CCE convictions. The panel reasoned that although the
Fair Sentencing Act had altered the penalties of underlying drug-distribution offenses that
would give rise to a CCE conviction, the Act had not modified the statutory penalties for
CCE convictions themselves. Accordingly, the panel ruled that the defendant did not
qualify for a Section 404 sentencing reduction (United States v. Colon).
• Criminal Law & Procedure: The Tenth Circuit affirmed the defendant’s conviction for
murder but reversed his conviction for kidnapping under 18 U.S.C. § 1201. The court
reasoned that the federal kidnapping statute requires a defendant to hold a victim for an
appreciable period beyond what is necessary to commit another offense (here, murder).
The Tenth Circuit also resolved an issue of first impression for the circuit: where a
federally recognized tribe has not authorized capital punishment for murders committed
on its lands, which statute of limitations applies—the general five-year statute of
limitations for a noncapital offense (pursuant to 18 U.S.C. § 3282) or the unlimited
statute of limitations for an offense that is punishable by death (pursuant to 18 U.S.C. §
3281)? The court held that the murder was capital in nature and thus the latter statute of
limitations applied (United States v. Murphy).
• Education: A divided Eighth Circuit affirmed the dismissal of a suit alleging that an
individualized education program established for a disabled student did not comport with
the Individuals with Disabilities Education Act (IDEA) and other statutes. Before
reaching the merits (and finding that the school had complied with IDEA), the majority
decided that the case had not been rendered moot after the student had aged out of the
maximum qualifying age for a free appropriate public education under the IDEA. Joining
other circuits, the majority held that compensatory education is a valid restorative remedy
for a substantive IDEA violation and that this remedy remains available after a student
ages out of IDEA eligibility (Kass v. W. Dubuque Cmty. Sch. Dist.).
• Employee Benefits: The Ninth Circuit reversed the lower court’s dismissal of a suit
brought under the Employee Retirement Income Security Act (ERISA) by pension plan
participants regarding information provided about their pension benefits. Among other
things, the panel held that an ERISA provision requiring a plan administrator to furnish a
plan participant with pension benefit statements upon request (29 U.S.C.
§ 1025(a)(1)(B)(ii)) provided a basis for the plaintiffs’ claim that the statements they
received contained substantially inaccurate benefit amounts (Bafford v. Admin. Comm. of
Northrop Grumman Pension Plan).
• Firearms: The Ninth Circuit rejected a legal challenge to a California law allowing state
authorities to share information with accredited research institutions about firearm and
ammunition purchasers and persons holding concealed carry permits. The panel held that
dissemination of such information did not violate registered gun owners’ right to
informational privacy under the Fourteenth Amendment because the largely biographical
information shared was not intimately personal. The panel also held that the information-
sharing law was not preempted by the Privacy Act and did not implicate the plaintiffs’
right to acquire or possess firearms under the Second Amendment (Doe v. Bonta).
• Firearms: A divided Ninth Circuit panel held that 18 U.S.C. § 922(g)(1), which makes it
an offense for a person to possess a firearm if previously convicted of an offense
punishable by more than a year’s imprisonment, violated the Second Amendment when
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applied to a nonviolent offender. Although the Ninth Circuit had earlier upheld the
constitutionality of Section 922(g)(1), the panel majority decided that ruling was no
longer controlling following the Supreme Court’s 2022 decision in New York State Rifle
& Pistol Association v. Bruen. Under Bruen, a court considering a Second Amendment
challenge to a firearms restriction first asks whether the plain text of the Second
Amendment covers the person, item, or conduct subject to the restriction. If the Second
Amendment applies, the court considers whether the restriction “is consistent with this
Nation’s historical tradition of firearm regulation.” Applying this framework, the panel
majority held that the Second Amendment applies to all U.S. citizens, regardless of
criminal history. Because the majority found that there was not an analogue to Section
922(g)(1)’s permanent restriction on firearm possession by nonviolent felons at the time
of the Second Amendment’s ratification, the majority ruled that Section 922(g)(1) was
unconstitutional as applied to those persons (United States v. Duarte).
• Immigration: The Ninth Circuit held that 8 U.S.C. § 1231(a)(5), which bars reopening a
reinstated removal order, is a nonjurisdictional statute and that the Board of Immigration
Appeals may exercise jurisdiction over an appeal of the denial of a motion to reopen a
reinstated removal order. Relying on the Supreme Court’s analysis in Santos-Zacaria v.
Garland, the circuit court found that Section 1231(a)(5) is not jurisdictional because it
does not unambiguously speak in jurisdictional terms, and that earlier Ninth Circuit cases
holding otherwise are irreconcilable with the Court’s decision (Suate-Orellana v.
Garland).
• Indian Law: The Tenth Circuit held that federal criminal jurisdiction extends to land
owned by non-Indians within the exterior boundaries of a Pueblo. Under 18 U.S.C.
§ 1152, federal jurisdiction exists over certain crimes committed in Indian country, which
the Supreme Court has recognized includes Pueblo lands. Acknowledging that non-
Indian-owned lands within Pueblo boundaries created “ambiguity” as to federal
jurisdiction, the Tenth Circuit derived a two-part test from Congress’s 2005 amendment
to the Pueblo Lands Act: federal criminal jurisdiction exists if (1) the land is within the
exterior boundaries of a grant from a prior sovereign (in this case, the King of Spain) and
(2) Congress has confirmed those boundaries. Both parties agreed the first requirement
had been met, and Congress confirmed the Pueblo of Santa Clara’s exterior boundaries in
1858. Therefore, the court held that relevant property was indeed Indian country,
subjecting the defendant to federal criminal jurisdiction (United States v. Smith).
• Labor & Employment: Reversing the lower court, a divided D.C. Circuit panel allowed
a career appointee to a Senior Executive Service (SES) position to proceed with her claim
that the Department of the Army violated her constitutional rights when it transferred her
to a non-SES position. The majority concluded the Civil Service Reform Act of 1978 and
implementing Department of the Army regulations gave rise to a property interest in the
SES position protected by the Due Process Clause. The majority held the SES appointee
was entitled to notice and a hearing before transfer to a non-SES position, which had not
occurred here. The majority remanded so the lower court could decide in the first instance
what procedures were required before the deprivation could occur (Esparraguera v. Dep’t
of the Army).
• Labor & Employment: The Ninth Circuit minimally amended an opinion from February
20, 2024, that denied a hospital’s petition for rehearing en banc, granted the National
Labor Relations Board’s (Board’s) cross-application for enforcement, and enforced the
Board’s order finding that the hospital engaged in an unfair labor practice when it stopped
deducting union dues after the expiration of a collective bargaining agreement. The Board
has changed its position multiple times in recent years on whether the National Labor
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Relations Act (NLRA) permits an employer to unilaterally cease collecting dues after an
agreement expires. In affirming the Board’s changed interpretation, the Ninth Circuit
explained that the NLRA is ambiguous on the issue and then upheld the Board’s
permissible interpretation of the statute pursuant to the Chevron doctrine (Valley Hosp.
Med. Ctr., Inc. v. NLRB).
• Religion: The Fourth Circuit directed the lower court to dismiss a suit brought by a
teacher at a Catholic school against his employer for sex discrimination under Title VII of
the Civil Rights Act of 1964 after the school ended his employment based on his plans to
marry his same-sex partner. The majority held that the school’s termination of the
plaintiff fell under the “ministerial exception,” a doctrine flowing from the Religion
Clauses of the First Amendment that prevents courts from interfering with religious
institutions’ decision to fire or discipline ministers and employees serving similar roles.
Although the school had waived invocation of the exception before the district court, the
majority agreed to relieve the school of the waiver after concluding that the structural
underpinnings of the exception gave the court discretion to do so, and that deciding the
case on nonconstitutional grounds would have potentially sweeping effects for the
application of civil rights laws to religiously motivated conduct. The majority found that
the characteristics of the plaintiff’s employment largely mirrored those of persons found
by the Supreme Court to be covered by the ministerial exception. The majority therefore
held that the school’s decision to terminate him based on conduct contrary to its tenets
was constitutionally protected (Billard v. Charlotte Cath. High Sch.).
• Religion: A divided Tenth Circuit reversed the district court’s denial of a preliminary
injunction, finding the lower court had abused its discretion in failing to enjoin two of the
University of Colorado’s COVID-19 policies (the Policies). The Policies generally
required all employees and students to receive a COVID-19 vaccine. The Policies
allowed for religious exemptions only if an individual’s specific religion opposed all
immunizations. Further, the Policies granted secular exemptions more favorably than
religious exemptions. The plaintiffs claimed that the Policies violated the First
Amendment’s Free Exercise and Establishment Clauses. The panel majority held that the
Policies were neither neutral nor generally applicable because they discriminate on their
face and in fact against certain religions due to stereotypes and religious animus. The
majority further held that the Policies failed to satisfy strict scrutiny and therefore
violated the Free Exercise and Establishment Clauses (Does 1-11 v. Bd. of Regents of
Univ. of Colorado).
Author Information
Michael John Garcia
Alejandra Aramayo
Deputy Assistant Director/ALD
Legislative Attorney
Congressional Research Service
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