The United States Courts of Appeals: Background and Circuit Splits from 2023

January 12, 2024 – April 1, 2024 R47899

The United States Courts of Appeals:
April 1, 2024
Background and Circuit Splits from 2023
Michael John Garcia,
The United States Courts of Appeals frequently act as the final arbiters of questions of law within
Coordinator
their respective jurisdictions. Although the Supreme Court of the United States sits at the
Deputy Assistant
pinnacle of the American judicial system and acts as the final arbiter on questions of federal law,
Director/ALD
the number of precedential decisions issued each year by the Court is quite small. For example,

the Court issued final decisions in 68 argued cases in its 2022 Term (66 through signed opinions
Craig W. Canetti,
and two through per curiam opinions) and in 70 argued cases in its 2021 Term (63 through signed
Coordinator
opinions and seven through per curiam opinions). By contrast, the courts that sit just below the
Section Research Manager
Supreme Court in the federal judicial hierarchy—the U.S. Courts of Appeals for thirteen

“circuits”—issue thousands of precedential decisions every year. The most current data available
from the U.S. Courts reveal that in FY2023 and FY2022, the appellate courts for the twelve
Alexander H. Pepper
“regional” circuits (i.e., all of the federal courts of appeals other than the U.S. Court of Appeals
Legislative Attorney

for the Federal Circuit) published, respectively, 3,165 and 3,424 signed precedential opinions
disposing of appeals to those courts.
Jimmy Balser
Legislative Attorney
This state of affairs is a product of both the design and the historical evolution of the federal

judiciary. With limited exceptions, the Supreme Court exercises wholly discretionary appellate
jurisdiction, deciding for itself which appeals it will accept out of the thousands that are

submitted for its consideration each year. The federal courts of appeals, by contrast, are
statutorily obligated to accept and decide all appeals challenging a final decision of a federal trial court, as well as certain
appeals challenging non-final orders. What is more, in the absence of a binding Supreme Court decision on an issue, each
federal court of appeals is free to decide that issue independently, and its decision will then be binding on all federal trial
courts within the jurisdiction of that circuit. As a result, the federal appellate courts can, and often do, reach different
conclusions on the same issue of federal law, causing a “split” among the circuits that leads to the non-uniform application of
federal law among similarly situated litigants. These conflicts may then be locked into place due to the judge-made “law of
the circuit doctrine,” which all of the federal courts of appeals have adopted. Under this doctrine, the first published decision
on a question of federal law by a three-judge panel within a circuit—including one diverging from a decision in another
federal court of appeals—is generally binding on all later panels within that same circuit unless the decision is reviewed and
overruled by the Supreme Court or a later (usually en banc) appellate panel within that circuit, or is superseded by a
legislative change in the governing law.
This Report provides insight into the substantial, and often decisive, role played by the U.S. Courts of Appeals in applying
and developing federal law. The Report offers a brief description of the historical development and current organization of
the federal judiciary as a whole. It then provides information regarding the structure and role of the U.S. Courts of Appeals
within the federal judicial system. The Report next discusses the impact of “circuit splits” on the application and evolution of
federal law. After offering some considerations for Congress, it concludes by cataloguing 97 circuit splits that arose or
widened within the federal courts of appeals in 2023 that were identified by the Congressional Court Watcher, a weekly CRS
Legal Sidebar series tracking notable federal appellate court decisions of potential interest to Congress.

Congressional Research Service

The United States Courts of Appeals: Background and Circuit Splits from 2023

he Supreme Court of the United States sits at the pinnacle of the American judicial system,
and its decisions are the final word on questions of federal law, having nationwide effect. It
T is thus unsurprising that the Supreme Court’s decisions regularly garner widespread
attention from the general public, the media, and the other branches of federal government,
including Congress. The Supreme Court, however, decides fewer than 100 argued cases annually,
compared to the thousands of precedential decisions issued every year by the courts that sit just
below the Supreme Court in the federal judicial hierarchy—the U.S. Courts of Appeals for the
thirteen judicial circuits, commonly referred to as “circuit courts.” This disparity ensures that the
U.S. Courts of Appeals frequently act as the final arbiters of questions of federal law within their
respective jurisdictions.
This Report provides insight into the substantial, and often decisive, role played by the federal
courts of appeals in applying and developing federal law. The Report begins with a brief
description of the historical development and current organization of the federal judiciary as a
whole. The Report then provides information regarding the structure and role of the U.S. Courts
of Appeals within the federal judicial system. The Report next discusses the impact of “circuit
splits”—that is, divergent decisions among the federal courts of appeals on the same federal legal
issue—on the application and evolution of federal law. The Report then offers some
considerations for Congress before concluding with a catalogue of 97 circuit splits that arose or
deepened within the federal courts of appeals in 2023, and which were identified by the
Congressional Court Watcher, a weekly CRS Legal Sidebar series that tracks notable federal
appellate court decisions of interest to Congress.
The Structure of the Federal Court System
Article III, Section 1 of the U.S. Constitution provides that “[t]he judicial Power of the United
States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may
from time to time ordain and establish.”1 Pursuant to this directive, Congress created the Supreme
Court of the United States and two tiers of “inferior” Article III federal courts, the U.S. Courts of
Appeals and the U.S. District Courts.2 The term “inferior” as used in Article III connotes a court’s
placement below the Supreme Court in the organizational hierarchy of the federal judiciary.3

1 U.S. CONST. art. III, § 1. See also id. art. I, § 8, cl. 9 (“The Congress shall have Power ... To constitute Tribunals
inferior to the supreme Court.”).
2 Congress established the Supreme Court, three circuit courts, and thirteen district courts in the First Judiciary Act of
1789. See Judiciary Act of 1789, 1 Stat. 73. The current structure of the Article III judiciary is set forth in 28 U.S.C.
§§ 1, 41, 81–131, 251.
3 Article III courts are vested with the full judicial power conferred by the Constitution, and thus are sometimes called
“constitutional” courts. See American Ins. Co. v. Canter, 26 U.S. (1 Pet.) 511, 546 (1828). Congress has exercised other
of its constitutional powers to create a number of non-Article III, or “legislative,” courts to undertake specialized
functions or fill unique needs, such as the U.S. Court of Federal Claims, the U.S. Tax Court, the U.S. Court of Appeals
for Veterans Claims, and the territorial district courts. See 26 U.S.C. § 7441 (“There is hereby established, under article
I of the Constitution of the United States, a court of record to be known as the United States Tax Court.”); 28 U.S.C.
§ 171 (the U.S. Court of Federal Claims “is declared to be a court established under article I of the Constitution of the
United States”); 38 U.S.C. § 7251 (“There is hereby established, under Article I of the Constitution of the United
States, a court of record to be known as the United States Court of Appeals for Veterans Claims.”); CRS Report
R47641, Federal and State Courts: Structure and Interaction, by Joanna R. Lampe and Laura Deal; Cong. Rsch Serv.,
Congressional Power to Establish Non-Article III Courts, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIII-S1-9-1/ALDE_00013604/ (last visited Jan. 12, 2024)); Cong.
Rsch Serv., Power of Congress over Territories, CONSTITUTION ANNOTATED,
https://constitution.congress.gov/browse/essay/artIV-S3-C2-3/ALDE_00013511/ (last visited Jan. 12, 2024)). A full
discussion of the legal bases for, functions of, and constitutional limitations applicable to non-Article III courts is
beyond the scope of this Report.
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The U.S. District Courts occupy the lowest tier of the federal judicial hierarchy.4 They are the
federal trial courts, empowered to try both civil and criminal cases that meet the criteria for the
exercise of federal subject matter jurisdiction.5 There is at least one district court in each state
along with one in the District of Columbia and one in Puerto Rico.6 The U.S. Court of
International Trade is a specialized Article III trial court that has nationwide jurisdiction over
claims involving international trade and U.S. customs laws.7
The thirteen U.S. Courts of Appeals occupy the middle tier of the federal judiciary’s hierarchy.8
They decide appeals by parties challenging a final decision of a federal district court or one of the
specialized courts, as well as appeals challenging certain interlocutory, or non-final, orders.9 In
addition, some federal statutes provide that particular agency actions are directly reviewed by the
U.S. Courts of Appeals.10 Direct review of agency decisions makes up a sizable portion of the
federal appellate docket.11
The U.S. Supreme Court is the highest court in both the federal judicial system and, on questions
of federal law, the entire American judiciary. While the Court has original jurisdiction over

4 See 28 U.S.C. §§ 81–131; About Federal Courts: Court Role and Structure, ADMIN. OFFICE OF THE U.S. COURTS,
https://www.uscourts.gov/about-federal-courts/court-role-and-structure (last visited Jan. 12, 2024) [hereinafter Court
Role and Structure].
5 Congress has granted federal courts two categories of subject-matter jurisdiction. “Federal-question jurisdiction”
encompasses “all civil actions” that “aris[e] under” federal law. 28 U.S.C. § 1331. “Diversity jurisdiction” encompasses
civil cases in which the monetary amount in controversy exceeds $75,000 and there is diversity of citizenship among
the parties, for example, the parties are citizens of different states. Id. § 1332(a). The Supreme Court has explained that
“[e]ach serves a distinct purpose: Federal-question jurisdiction affords parties a federal forum in which ‘to vindicate
federal rights,’ whereas diversity jurisdiction provides ‘a neutral forum’ for parties from different States.” Home Depot
U.S.A., Inc. v. Jackson, 139 S. Ct. 1743, 1746 (2019).
6 See 28 U.S.C. §§ 81–131; Court Role and Structure, supra note 4; About Federal Courts: Federal Courts & the
Public, Court Website Links, ADMIN. OFFICE OF THE U.S. COURTS, https://www.uscourts.gov/about-federal-courts/
federal-courts-public/court-website-links (last visited Jan. 12, 2024) [hereinafter Federal Court Website Links]. Each
federal district court includes an Article I bankruptcy court dedicated to resolving bankruptcy cases. See id.; 28 U.S.C.
§ 151; Court Role and Structure, supra note 4. Each of the territories of Guam, the Northern Mariana Islands, and the
Virgin Islands has a non-Article III trial court that handles all federal cases, including bankruptcy cases. See 48 U.S.C.
§ 1424 (Guam); id. §§ 1611, 1612(a) (Virgin Islands); id. §§ 1821–1822 (Northern Mariana Islands); Court Role and
Structure, supra note 4; Federal Court Website Links, supra.
7 See 28 U.S.C. § 251; About the Court, U.S. COURT OF INTERNATIONAL TRADE, https://www.cit.uscourts.gov/about-
court (last visited Dec. 21, 2023).
8 See 28 U.S.C. § 41.
9 See “Structure and Role of the U.S. Courts of Appeals,” infra.
10 See, e.g., 8 U.S.C. § 1252(a) (authorizing direct appellate review of most final immigration removal orders issued in
administrative proceedings); 28 U.S.C. § 2342 (giving federal appeals courts exclusive jurisdiction to review various
agency actions); 29 U.S.C. § 655(f) (providing that a pre-enforcement challenge to an emergency temporary standard
issued by the Occupational Safety and Health Administration may be filed with the U.S. Court of Appeals in the
jurisdiction where the petitioner resides or has a principal place of business). Some statutes may specify that review
takes place in a particular appellate court. See, e.g., 42 U.S.C. § 7607(b) (granting the U.S. Court of Appeals for the
D.C. Circuit exclusive jurisdiction for review of Clean Air Act regulations promulgated by the Environmental
Protection Agency).
11 In the twelve-month period ending March 31, 2023, for example, roughly 10.9% of all filings in the twelve regional
U.S. Courts of Appeals involved appeals of agency administrative decisions, 79% of which were appeals of
immigration decisions by the Board of Immigration Appeals. U.S. Courts, Federal Judicial Caseload Statistics 2023,
https://www.uscourts.gov/statistics-reports/federal-judicial-caseload-statistics-2023 (last visited Jan. 12, 2024).
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certain legal disputes,12 most cases come to the Court through appeals from decisions of the U.S.
Courts of Appeals and state supreme courts, when the state case raises issues of federal law.13
The Structure and Role of the U.S. Courts of Appeals
Twelve of the thirteen U.S. Courts of Appeals are organized into regional “circuits,” meaning that
each court exercises jurisdiction over appeals from the district courts within a specific set of
states and, sometimes, U.S. territories.14 For example, the U.S. Court of Appeals for the First
Circuit (First Circuit) exercises jurisdiction over appeals from the district courts in Maine,
Massachusetts, New Hampshire, Puerto Rico, and Rhode Island.15 The Ninth Circuit encompasses
the most states and territories, adjudicating appeals from the district courts in Alaska, Arizona,
California, Guam, Hawaii, Idaho, Montana, Nevada, the Northern Mariana Islands, Oregon, and
Washington.16 Figure 1 below depicts the geographic jurisdiction of each of the twelve regional
U.S. Courts of Appeals.
The District of Columbia Circuit (D.C. Circuit) exercises geographic jurisdiction only over
appeals from the U.S. District Court for the District of Columbia.17 However, that limited
geographic reach belies the wide scope of cases handled by the D.C. Circuit, which has been
called the second most important court in the country after the Supreme Court.18 Due to a
combination of geographic and statutory factors, the D.C. Circuit handles a uniquely large
number of administrative law cases, national security cases, and other cases concerning the
federal government as compared to the other circuits.19 The D.C. Circuit also exercises exclusive
appellate jurisdiction over a variety of specialized subject matter, including decisions of copyright
royalty judges20 and certain military commissions.21
The jurisdiction of the thirteenth federal court of appeals—the U.S. Court of Appeals for the
Federal Circuit (Federal Circuit)—is defined by subject matter rather than geography.22 The

12 U.S. CONST., art. III, § 2, cl. 2 (giving the Supreme Court original jurisdiction over “all Cases affecting Ambassadors,
other public Ministers and Consuls, and those in which a State shall be Party”); 28 U.S.C. § 1251 (setting forth matters
over which the Court has original and exclusive jurisdiction—i.e., controversies with two or more states—and cases
where it has both original and appellate jurisdiction).
13 See 28 U.S.C. § 1254 (providing that “[c]ases in the courts of appeals may be reviewed by the Supreme Court”); id.
§ 1257 (providing that “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could
be had, may be reviewed by the Supreme Court” when the state case involves an issue of federal law).
14 See 28 U.S.C. § 41.
15 See id.
16 See id.; 48 U.S.C. § 1821(a) (“The Northern Mariana Islands shall constitute a part of the same judicial circuit of the
United States as Guam.”); Figure 1, infra.
17 See 28 U.S.C. § 41.
18 See Jake Kobrick, The Role of the U.S. Courts of Appeals in the Federal Judiciary, Differences Between Circuits,
https://www.fjc.gov/history/courts/Role-of-the-Courts-of-Appeals (last visited Jan. 12, 2024) [hereinafter Differences
Between Circuits]; Richard J. Pierce, Jr., The Special Contributions of the D.C. Circuit to Administrative Law, 90 GEO.
L. J. 779, 779 (2002).
19 See Differences Between Circuits, supra note 18; Eric M. Fraser et al., The Jurisdiction of the D.C. Circuit, 23
CORNELL J. OF L. & PUB. POL. 131, 140–48, 152 (2013); Brett M. Kavanaugh, The Courts and the Administrative State,
64 CASE W. RES. L. REV. 711, 715, 719–26 (2014); Pierce, supra note 18.
20 17 U.S.C. § 803(d)(1).
21 10 U.S.C. § 950g(a).
22 Statistics & Reports: Judicial Business, U.S. Courts of Appeals—Judicial Business 2023, U.S. Court of Appeals for
the Federal Circuit, ADMIN. OFFICE OF THE U.S. COURTS, https://www.uscourts.gov/statistics-reports/us-courts-appeals-
judicial-business-2023 (last visited March 27, 2024) [hereinafter Judicial Business 2023—Federal Circuit]; Differences
Between Circuits, supra note 18.
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Federal Circuit exercises exclusive nationwide jurisdiction over appeals involving customs and
patent claims, as well as appeals from the U.S. Court of Federal Claims, which adjudicates claims
for money damages brought against the United States, and the U.S. Court of International Trade.23
The Federal Circuit also exercises exclusive jurisdiction over specified appeals from the Merit
Systems Protection Board, the U.S. Court of Appeals for Veterans Claims, and agency boards of
contract appeals.24
Figure 1. Geographic Boundaries of the U.S. Courts of Appeals and District Courts

Source: Admin. Office of the U.S. Courts, https://www.uscourts.gov/about-federal-courts/federal-courts-public/
court-website-links (last visited Jan. 12, 2024).
The U.S. Courts of Appeals are “intermediate” courts of appeals.25 This is because they occupy
the middle tier of the federal court system between the federal district courts and the U.S.

23 28 U.S.C. § 1295(a)(1)–(5); Judicial Business 2023—Federal Circuit, supra note 22; Court Role and Structure,
supra note 4; Differences Between Circuits, supra note 18.
24 See 28 U.S.C. § 1295(a)(9)–(10) (appeals from the Merit Systems Protection Board and agency boards of contract
appeals); 38 U.S.C. § 7292 (establishing the Federal Circuit’s jurisdiction over appeals from the U.S. Court of Appeals
for Veterans Claims). The U.S. Court of Appeals for Veterans Claims is a specialized Article I court with exclusive
jurisdiction to review administrative decisions of the Board of Veterans’ Appeals within the Department of Veterans
Affairs. See About the Court, U.S. COURT OF APPEALS FOR VETERANS CLAIMS, http://m.uscourts.cavc.gov/About.php
(last visited Jan. 12, 2024).
25 See Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 112 (1959) (Frankfurter, J., dissenting) (noting that
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Supreme Court, and because their decisions are subject to review by the Supreme Court.26 As a
practical matter, however, the Supreme Court exercises its review authority in only a limited
number of cases each year. For example, the Court issued final decisions in 68 cases argued in its
2022 Term (66 through signed opinions and two through per curiam opinions) and in 70 cases in
its 2021 Term (63 through signed opinions and seven through per curiam opinions).27 (The total
number of cases filed in the Supreme Court during those years was 4,159 in 2022 and 4,900 in
2021.28)
By contrast, the most recent data available from the Administrative Office of the U.S. Courts
indicate that in FY2023 and FY2022 the twelve regional federal circuits (i.e., all of the federal
courts of appeals other than the Federal Circuit) published, respectively, 3,165 and 3,424
precedential written, signed opinions.29 Overall, the twelve regional U.S. Courts of Appeals
collectively issued 26,391 appellate opinions or orders in cases terminated on the merits after oral
hearing or submission on briefs in FY2023, and 28,504 such opinions or orders in FY2022.30
The vast difference in the number of cases decided by the Supreme Court and the U.S. Courts of
Appeals stems from the different scope of their respective appellate jurisdictions. With very
limited exceptions, the Supreme Court exercises wholly discretionary appellate jurisdiction,31
deciding for itself which appeals it will hear out of the thousands that are submitted for its
consideration. The Court’s rules indicate that the Court grants discretionary review, or a writ of
certiorari, “only for compelling reasons,” which may include
• a “conflict” among two or more U.S. Courts of Appeals “on the same important
matter”;32
• a “conflict” between a U.S. Court of Appeals and a state court of last resort on
“an important federal question”;33

the Evarts Act of 1891 “established intermediate courts of appeals to free th[e Supreme] Court from reviewing the great
mass of federal litigation”).
26 See 28 U.S.C. § 1254.
27 Hon. John G. Roberts, Jr., 2023 Year-End Report on the Federal Judiciary 8 (Dec. 31, 2023),
https://www.supremecourt.gov/publicinfo/year-end/2023year-endreport.pdf (last visited Jan. 12, 2024) [hereinafter
Federal Judiciary 2023 Year-End Report]; Hon. John G. Roberts, Jr., 2022 Year-End Report on the Federal Judiciary 5
(Dec. 31, 2022), https://www.supremecourt.gov/publicinfo/year-end/2022year-endreport.pdf (last visited Jan. 12,
2024). The Supreme Court’s annual term begins “on the first Monday in October and end[s] on the day before the first
Monday in October of the following year.” S. Ct. R. 3.
28 2023 Year-End Report on the Federal Judiciary, supra note 27 . Besides several dozen “merits” decisions issued by
the Court each year after full briefing and oral argument, the Court also issues orders granting or denying petitions for a
writ of certiorari; rulings in emergency matters, such as requests to stay lower court decisions pending appeal; and
orders setting deadlines and other procedures for litigation before the Court. While most of these orders involve either
granting or denying certiorari in a case or routine procedural questions, some orders may have a major impact on high-
profile litigation. For further discussion. see CRS Legal Sidebar LSB10637, The “Shadow Docket”: The Supreme
Court’s Non-Merits Orders, by Joanna R. Lampe.
29 Judicial Facts and Figures 2023 Table 2.5—Type of Opinion or Order Filed in Cases Terminated on the Merits,
ADMIN. OFFICE OF THE U.S. COURTS, https://www.uscourts.gov/statistics-reports/judicial-facts-and-figures-2023 (last
visited March 27, 2024). This table shows similar numbers for cases terminated on the merits by the U.S. Courts of
Appeals in other years.
30 Id.
31 Congress removed the last vestiges of the Supreme Court’s mandatory appellate jurisdiction over judgments of the
U.S. Courts of Appeals and state supreme courts in 1988. See Act of June 27, 1988, P.L. 100-352, 102 Stat. 662 (1988).
The current statutes that confer and control the Supreme Court’s jurisdiction are codified at 28 U.S.C. §§ 1251, 1253–
1254, 1257–1260.
32 S. Ct. R. 10(a).
33 S. Ct. R. 10(a), (b).
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• a “conflict” among two or more state courts of last resort on “an important
federal question”;34
• a decision of a state court or U.S. Court of Appeals on “an important federal
question” that “conflicts with relevant decisions of” the U.S. Supreme Court;35
• a decision of a state court or U.S. Court of Appeals on “an important question of
federal law” that “has not been, but should be, settled by” the U.S. Supreme
Court;36 and
• a decision of a U.S. Court of Appeals that “has so far departed from the accepted
and usual course of judicial proceedings, or sanctioned such a departure by a
lower court, as to call for an exercise of” the Supreme Court’s “supervisory
power.”37
The scope of the U.S. Courts of Appeals’ mandatory appellate jurisdiction is much broader. Under
28 U.S.C. § 1291, the twelve regional courts of appeals “shall have jurisdiction of appeals from
all final decisions of the district courts of the United States.”38 This jurisdiction is mandatory
because, under § 1291, “a party may appeal to a court of appeals as of right from ‘final decisions
of the district courts.’”39 A final decision for these purposes “is normally limited to an order that
resolves the entire case.”40
The twelve regional U.S. Courts of Appeals also exercise appellate jurisdiction over certain
interlocutory, or non-final, decisions of district courts under 28 U.S.C. § 1292. Section 1292(a)
assigns these courts mandatory jurisdiction over appeals from “interlocutory orders of the district
courts … granting, continuing, modifying, refusing or dissolving injunctions, or refusing to
dissolve or modify injunctions,” “appointing receivers, or refusing orders to wind up
receiverships,” and “determining the rights and liabilities of the parties to admiralty cases.”41
Section 1292(b) grants the U.S. Courts of Appeals discretion to review other non-final orders if
the district court first certifies that the “order involves a controlling question of law as to which
there is substantial ground for difference of opinion and that an immediate appeal from the order
may materially advance the ultimate termination of the litigation.”42
The Federal Circuit has similar mandatory and discretionary appellate authority over final
decisions and non-final orders issued in the limited set of specialized cases over which Congress
granted it exclusive jurisdiction.43
Each final published decision of a U.S. Court of Appeals establishes binding law, or precedent,
that applies throughout that circuit, unless the decision is reviewed and overruled by the Supreme
Court or a subsequent (most likely en banc) appellate panel within that circuit, or is superseded
by a legislative change in the governing law.44 As discussed earlier, only a fraction of final

34 S. Ct. R. 10(b).
35 S. Ct. R. 10(c).
36 Id.
37 S. Ct. R. 10(a).
38 28 U.S.C. § 1291.
39 Ritzen Group, Inc. v. Jackson Masonry, LLC, 140 S. Ct. 582, 586 (2020) (emphasis added).
40 Id.
41 28 U.S.C. § 1292(a).
42 Id. § 1292(b).
43 See id. §§ 1292(c)–(d), 1295.
44 BRYAN GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 492–94 (2016) (discussing traditional rules for overruling
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decisions by the circuit courts are reviewed by the Supreme Court. In this way, the federal courts
of appeals are at the forefront of the application and interpretation of every aspect of federal law.
As one analysis observed, “Ultimately, the appellate courts bear the chief responsibility for
lawmaking in the federal system because the Supreme Court chooses to review an extremely
narrow band of cases.”45
The Importance of Circuit Splits in the Evolution and Application
of Federal Law
In exercising their broad mandatory and discretionary appellate jurisdiction, the U.S. Courts of
Appeals decide constitutional questions and interpret the meaning of federal statutes and their
interplay with other federal and state laws, international treaties, and the U.S. Constitution. They
also frequently interpret federal agency rules to assess whether they adhere to Congress’s
statutory directives.
One of the clearest indicators that the federal courts of appeals are grappling with an unsettled
issue of federal law is the existence of a conflict, or “split,” among the circuits. A “circuit split”
occurs when two or more of the thirteen federal courts of appeals reach different conclusions on
the same question of federal law, for example, by applying different interpretations of the same
statutory term.46 This difference results in the non-uniform treatment of similarly situated
litigants, depending on the circuit that hears their case, and also may lead to greater uncertainty
for litigants in the circuits that have not yet addressed the issue.47
Circuit splits can arise only when the Supreme Court has not resolved the question, leaving the
federal courts of appeals without mandatory precedent to follow.48 In the absence of a binding
Supreme Court decision on an issue, each federal court of appeals is free to decide that issue
independently, and that decision will then be binding on all federal trial courts within the
jurisdiction of that circuit.49 What is more, all federal courts of appeals follow the “law of the

circuit decisions, but noting that some judicial circuits’ procedural rules allow a three-judge circuit panel to overturn an
earlier decision). Historically, en banc review referred to a procedure by which all of the judges of a court of appeals
who were in regular active service would review the decision of the three-judge panel that originally decided the
matter. Due to the differing numbers of active judges that now comprise each of the thirteen U.S. Courts of Appeals,
the circuits may have different rules establishing what constitutes en banc review for that court. Compare, e.g., 1st Cir.
R. 35 (providing that “a court en banc consists solely of the circuit judges of this circuit in regular active service,” with
limited exceptions allowing participation by a senior judge), with 9th Cir. R. 35-3 (“The en banc court ... shall consist of
the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the
absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel
shall preside.”).
45 Jonathan M. Cohen & Daniel S. Cohen, Iron-ing Out Circuit Splits: A Proposal for the Use of the Irons Procedure to
Prevent and Resolve Circuit Splits Among United States Courts of Appeals, 108 CALIF. L. REV. 989, 997 (2020)
(internal quotation marks omitted).
46 Circuit Split, LEGAL INFO. INST., https://www.law.cornell.edu/wex/circuit_split (last visited Jan. 12, 2024)
[hereinafter Legal Info. Inst.]; Cohen & Cohen, supra note 45, at 990; Christina M. Manfredi, Waiving Goodbye to
Personal Jurisdiction Defenses: Why United States Courts Should Maintain a Rebuttable Presumption of Preclusion
and Waiver Within the Context of International Litigation, 58 Cath. Univ. L. Rev. 233, 256 n.156 (2008).
47 Legal Info. Inst., supra note 46; Cohen & Cohen, supra note 45, at 990, 996. The non-uniform interpretation of the
law may also affect federal agencies responsible for implementing statutes and regulations subject to conflicting
judicial rulings. For further discussion, see CRS Report R47882, Agency Nonacquiescence: An Overview of
Constitutional and Practical Considerations, by Benjamin M. Barczewski.
48 Manfredi, supra note 46, at 256 n.156.
49 Wyatt G. Sassman, How Circuits Can Fix Their Splits, 103 MARQ. L. REV. 1401, 1430–31 (2020) (noting that the
Supreme Court’s decision in Mast, Foos & Co. v. Stover Mfg. Co., 177 U.S. 485, 488 (1900), “paired with
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circuit doctrine.”50 Under that doctrine, the first published decision on a question of federal law
by a three-judge appellate panel within a circuit is generally binding on all later panels within that
same circuit unless the decision is overruled by the Supreme Court or a later (typically en banc)
appellate panel of that circuit, or is superseded by legislation.51 If the Supreme Court decides a
legal question that was the subject of a circuit split or Congress resolves the question through
legislation, all thirteen federal courts of appeals are bound to apply those directives, ensuring
nationwide uniformity on the issue.52
As noted earlier, a split among the circuits on a question of federal law is one of the main factors
that prompts the Supreme Court to agree to accept an appeal.53 Commenters have observed that
the Supreme Court appears to fill the majority of its docket—often around 70%—with cases
involving apparent conflicts.54 A court of appeals will often expressly indicate in its opinion that
its decision differs from that of another court or “deepens” a preexisting split among the circuits
by joining one side in that conflicting interpretation of a point of law.55 The Supreme Court’s
rules make it clear, however, that the existence of a circuit split is not on its own sufficient to
warrant Supreme Court review; the split must concern an “important matter.”56
Thus, by both design and the historical evolution of the federal judiciary, the federal courts of
appeals serve as incubators for legal issues of national importance and novel questions of federal
law as those issues move toward possible resolution by the U.S. Supreme Court.57 That process,
however, ensures that a conflict among the federal courts of appeals may persist and deepen for
years until the Supreme Court grants certiorari to resolve it.58 In many instances, moreover, the
Supreme Court might not grant review, leaving the federal courts of appeals as the final decision-
makers on many of those questions.59
Considerations for Congress
Congress is constitutionally empowered to respond legislatively to many federal judicial
decisions. The volume and diffuse nature of appellate court decisions may, however, make it

congressional maintenance of the regional circuits over time, can reasonably be read as support for a longstanding
practice of treating decisions from other circuits as persuasive and not binding authority”).
50 Sassman, supra note 49, at 1406.
51 See id. at 1401, 1405, 1406–07, 1426–27; Cohen & Cohen, supra note 45, at 1006. See also BRYAN GARNER ET AL.,
supra note 44, at 492–94. See also Hon. Michael S. Kanne, The “Non-Banc En Banc”: Seventh Circuit Rule 40(e) and
the Law of the Circuit”, 32 S. Ill. U. L.J. 611 (2007-2008) (discussing Seventh Circuit rule requiring the circulation of
any proposed panel opinion that would overrule a prior circuit decision to all active members of the court, and
providing that the opinion not be published unless a majority of the members do not vote to rehear the issue en banc).
52 See Manfredi, supra note 46, at 256 n.156.
53 S. Ct. R. 10(a).
54 Sassman, supra note 49, at 1421. See also Stephen M. Shapiro, et al., SUPREME COURT PRACTICE §§ 4.3, 4.4 (11th ed.
2013).
55 See, e.g., United States v. Chavez, 29 F.4th 1223 (10th Cir. 2022), cert. denied, 143 S. Ct. 485 (2022).
56 S. Ct. R. 10(a).
57 See Cohen & Cohen, supra note 45, at 998 (noting that some commenters “argue that the current system allows the
circuits to act as laboratories for the development of federal law”); Sassman, supra note 49, at 1447–50.
58 See Sassman, supra note 49, at 1403, 1405, 1419–21.
59 See Cohen & Cohen, supra note 45, at 994–95 (noting that “the Court has left unresolved circuit splits in important
and numerous areas of federal law,” and that, “[e]ven if the Court changed course and shifted most of its focus to cases
that present circuit splits, it might be unwilling or unable to hear enough cases to meaningfully reduce the number of
circuit splits”); Sassman, supra note 49, at 1405 (“[T]he open secret is that the Supreme Court cannot possibly resolve
all of the conflicts generated by the courts of appeals.”).
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challenging for an individual Member or their staff to monitor judicial developments relevant to
their work.60 This characteristic may, in turn, make it much less likely that Congress will respond
through legislation to issues raised by appellate court decisions. For instance, one study of
congressional responses to appellate rulings concluded that, between 1990 and 1998, Congress
responded “to only a minute percentage of cases decided by the courts of appeals, even though
the majority of appeals court decisions involve the application of federal statutes.”61 The study
identified 65 instances where Congress enacted a law to overrule or codify an appellate court
decision during that period.62 In contrast, a different study, focusing on congressional overrides of
Supreme Court decisions interpreting statutes, identified 104 legislative overrides of such
decisions over roughly the same period.63
There are several ways for lawmakers to discern when a judicial opinion indicates an issue that
may benefit from legislative attention. In addition to pointing out circuit splits, federal courts of
appeals may use other means to “set the table” for consideration of the question by the Supreme
Court or by Congress.64 As the First Circuit has explained, “it is not uncommon in this and other
circuits to include language in opinions that flags potential issues for Congress to consider, should
it choose to do so.”65 To this end, courts of appeals have stated in their opinions that Congress
may wish to “revisit,” “examine,” “reexamine,” “clarify,” or “give further direction” on some
aspect of federal statutory or regulatory law.66 A vigorous dissent from a majority opinion by a
judge, or a number of judges, of a court of appeals might also signal that a case raises an
important federal-law issue on which the judges of the court strongly disagree.67
One tool available to help Congress identify federal appellate court decisions that may be of
legislative interest is the Congressional Research Service’s (CRS) weekly Congressional Court
Watcher series, published as part of the CRS Legal Sidebar product line. The Congressional
Court Watcher briefly recaps decisions of the Supreme Court (including grants of petitions for a
writ of certiorari) and precedential decisions of the courts of appeals for the thirteen federal
circuits. Selected cases typically involve the interpretation or validity of federal statutes, the

60 See Stefanie A. Lindquist & David A. Yalof, Congressional Responses to Federal Circuit Court Decisions, 85
JUDICATURE 61, 67 (2001) (“Indeed, in the case of appellate court decisions interpreting federal statutes, Congress is
faced with thousands of decisions each year of potential relevance, in contrast to yearly consideration of less than 100
Supreme Court decisions in recent terms.”); Marin K. Levy & Tejas N. Narechania, Interbranch Information Sharing:
Examining the Statutory Opinion Transmission Project, 108 CAL. L. REV. 917, 918–19 (2020) (observing that “the vast
and largely undifferentiated nature of the modern Judiciary’s body of decisions creates a problem of attention for
Congress: Which statutory interpretations merit a second look?”); Robert A. Katzmann, Bridging the Statutory Gulf
Between Courts and Congress: A Challenge of Positive Political Theory, 80 GEO. L.J. 653, 662 (1992).
61 Lindquist & Yalof, supra note 60, at 68.
62 Id.
63 Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides of Supreme Court Statutory
Interpretation Decisions, 1967–2011, 92 TEX. L. REV. 1317, 1356 (2014) (identifying 104 legislative overrides of
Supreme Court decisions in the 1990s).
64 See Pierce, supra note 18, at 779–81.
65 Goethel v. U.S. Dep’t of Commerce, 854 F.3d 106, 117 (1st Cir. 2017).
66 See id. (quoting cases).
67 See, e.g., William J. Brennan, Jr., In Defense of Dissents, 50 HASTINGS L.J. 671, 674 (1999) (“In its most
straightforward incarnation, the dissent demonstrates flaws the author perceives in the majority’s legal analysis.”);
Daryl Lim, I Dissent: The Federal Circuit’s “Great Dissenter,” Her Influence on the Patent Dialogue, and Why It
Matters, 19 VAND. J. OF ENT. & TECH L. 873, 887 (2017) (“Some judges see dissenting as an obligation because
Congress makes the laws and judges interpret them. Since majority opinions may be wrong, dissents inject
accountability and thus integrity into the judicial process.”); id. at 890 (“In an appellate court like the Federal Circuit,
the dissent can tell the Supreme Court or future panels that the majority’s rule needs to be examined carefully and
should be revised or overturned.”).
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validity of agency action taken pursuant to statutory delegations of authority, and constitutional
issues relevant to Congress’s lawmaking and oversight functions. Table 1 below recaps the circuit
splits identified in the Congressional Court Watcher series in 2023, illustrating the array of
federal legal issues of potential Congressional interest decided by the federal courts of appeals
throughout the past year.
Circuit Splits That Emerged or Widened in 2023 on
Topics of Congressional Interest
Table 1 below identifies 97 appellate court decisions from 2023 where the controlling opinion of
a circuit panel or en banc circuit court recognized 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. The Supreme Court subsequently resolved the circuit split addressed in one
case and vacated that decision.68 Table 1 does not include court decisions that were abrogated by
the circuit court or the Supreme Court as of the date of this Report.69
Identified cases are organized into twenty-five topics:
• Arbitration (3 cases)
• Bankruptcy (2 cases)
• Civil Liability (1 case)
• Civil Procedure (7 cases)
• Civil Rights (11 cases)
• Consumer Protection (2 cases)
• Criminal Law & Procedure (30 cases)
• Education (1 case)
• Election Law (1 case)
• Employee Benefits (1 case)
• False Claims Act (1 case)
• Federal Courts (1 case)
• Financial Regulation (1 case)
• Firearms (4 cases)
• Health (3 cases)
• Immigration (13 cases)

68 In Pulsifer v. United States, No. 22-340, 2024 WL 1120879 (U.S. Mar. 15, 2024), the Supreme Court resolved a
circuit split over the meaning of the First Step Act’s “safety valve” provision found in 18 U.S.C. § 3553(f)(1)). It
subsequently vacated and remanded a Fourth Circuit decision listed in Table 1 that was premised on a conflicting
interpretation of that provision. United States v. Jones, 60 F.4th 230 (4th Cir. 2023), cert. granted and judgment
vacated, No. 23-46 (U.S. Mar. 25, 2023).
69 For example, in Mayes v. Biden, 67 F.4th 921, 926 (9th Cir. 2023), the Ninth Circuit split with three other circuits,
allowing enforcement of an executive order mandating that federal contractors ensure their workforces are vaccinated
against COVID-19. That ruling was subsequently vacated on mootness grounds after the contractor mandate was
rescinded, and after the Supreme Court vacated three judgments in similar vaccine mandate cases on mootness grounds.
See Mayes v. Biden, 89 F.4th 1186 (9th Cir. 2023).

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• Intellectual Property (1 case)
• International Law (1 case)
• Labor & Employment (4 cases)
• Property (1 case)
• Securities (1 case)
• Tax (4 cases)
• Torts (1 case)
• Transportation (2 cases)
These categories do not necessarily capture the full range of legal issues the listed cases address.
Cases under each topic are arranged by federal judicial circuit (with cases from the D.C. Circuit
and the Federal Circuit preceding numbered circuits, which are organized numerically) and in
order of publication in the Federal Reporter. Each case is accompanied by a brief summation of
the key holding or holdings of the controlling opinion, along with citations to decisions from
other circuits identified by the controlling opinion as taking a conflicting view on a legal question
resolved in the case.
Methodology
Cases listed in Table 1 were originally identified and summarized in the Congressional Court
Watcher. Congressional Court Watcher authors reviewed all reported federal appellate decisions
between January 1 and December 31, 2023, and summarized those likely to be of particular
interest to lawmakers. Table 1 below includes appellate decisions identified in the Congressional
Court Watcher in which the controlling opinion acknowledged a circuit split on a legal issue
resolved in the opinion. All cases referenced in Table 1 (including decisions cited in a referenced
case as reflecting a circuit split) were reviewed before publication of this CRS Report to ensure
that they had not been abrogated or superseded by a later decision. This Report omits from Table
1 decisions originally included in the Congressional Court Watcher that announced a circuit split
but were later vacated or overruled.
The last column of Table 1 identifies decisions from other circuits that are referenced in a listed
case as evidence of a circuit split. Table 1 only identifies reported (i.e., precedential) decisions
from other federal courts of appeals that the controlling opinion identifies as conflicting. (If an
opinion cites multiple conflicting decisions from a particular circuit, only the most recent is
listed.) Table 1 does not identify conflicting decisions by other circuits in non-precedential cases
or decisions by state courts or federal district courts. Table 1 also omits conflicting decisions
from other circuits if those decisions were subsequently abrogated.70 Table 1 also does not
include citations to circuit court rulings that are mentioned in a controlling opinion as agreeing
with its position in a circuit split.

70 For example, in July 2023, a three-judge Fifth Circuit panel issued a decision in Argueta-Hernandez v. Garland, 73
F.4th 300, 570 (5th Cir. 2023) (“Argueta-Hernandez I”), that was cited by several courts as reflecting 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. See, e.g., Martinez v. Garland, 86 F.4th 561, 570 (4th Cir.
2023) (agreeing with the Fifth Circuit’s decision in Argueta-Hernandez I); Alonso-Juarez v. Garland, 80 F.4th 1039,
1049 (9th Cir. 2023) (disagreeing with the Fifth Circuit’s conclusion in Argueta-Hernandez I). In December 2023, the
panel withdrew Argueta-Hernandez I and substituted a new opinion that, in effect, resulted in the court switching sides
in the circuit split. Argueta-Hernandez v. Garland, 87 F.4th 698 (5th Cir. 2023). Because Argueta-Hernandez I was
withdrawn, Table 1 does not list it among the cases cited by a listed case as evidence of a circuit split.
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Table 1 does not attempt to present an exhaustive list of all circuit splits that emerged or widened
in 2023. Different approaches might have yielded different results. Table 1 is based on the CRS
Congressional Court Watcher series, which selects court decisions on the topics most relevant to
Congress’s legislative and oversight functions. The collected cases in Table 1 typically involve
(1) the interpretation or validity of a federal statute; (2) the validity or interpretation of a rule or
regulation implementing a federal statute; or (3) a constitutional issue of relevance to Congress’s
lawmaking and oversight functions. Table 1 does not attempt to identify circuit splits involving
matters that generally fall outside of Congress’s legislative purview, such as judicial doctrines not
tied to a particular federal statute.71
Because the methodology used to identify circuit splits turns on whether a controlling circuit
court opinion recognizes disagreement with one or more circuits on a key legal question, Table 1
could be underinclusive or overinclusive as compared to other approaches for counting circuit
splits.
For example, Table 1 only includes cases where the controlling opinion specifically
acknowledges a divergent approach by one or more other circuits. This detail means that Table 1
does not include cases that conflict with the approach taken by other circuits, but where the
controlling opinion does not specifically acknowledge this difference in approach.72 Table 1 also
does not include cases where, for example, a dissenting opinion characterizes the controlling
opinion as causing a circuit split but the controlling opinion—which serves as binding precedent
for future courts in the circuit—either does not acknowledge or disputes the dissent’s
characterization.
Still, it may not always be clear whether a controlling opinion, when announcing its disagreement
with another circuit, is creating or widening a circuit split. While each case discussed in Table 1
identifies a decision from one or more other circuits that take a diverging view on a legal issue,
observers may disagree as to whether some of these divergences are so significant as to result in
the non-uniform application of the law among the circuits.73 There may also, occasionally, be
uncertainty as to whether the disagreement involves a matter critical to the identifying court’s
decision, or instead involves a non-critical matter that might be treated as non-binding dictum by
future jurists.74 Table 1’s inclusion of citations to referenced cases allows readers to review the
cases themselves and make an independent assessment.

71 See, e.g., In re White, 64 F.4th 302, 309–10 (D.C. Cir. 2023), cert. denied sub nom. Hilton Hotels Ret. Plan v. White,
144 S. Ct. 487 (2023) (observing diverging views among the circuits over the appropriateness of judicial certification
of a “fail-safe class”—that is, a class defined in terms of the injuries suffered by its members).
72 For example, Table 1 includes Williams ex rel. L.W. v. Skrmetti, 73 F.4th 408, 421 (6th Cir. 2023), in which the court
granted an emergency stay of a lower court’s preliminary injunction against a state law restricting certain medical
treatments for transgender minors, and it disagreed with other circuits that have applied heightened constitutional
scrutiny to transgender-based classifications. In contrast, it does not include L. W. by & through Williams v. Skrmetti,
83 F.4th 460 (6th Cir. 2023), a decision issued by the same panel two months later reversing the lower court’s
injunction and applying similar reasoning as the earlier panel decision, but not explicitly observing disagreement with
other circuits over the appropriate level of constitutional scrutiny.
73 See, e.g., Clary Hood, Inc. v. Comm’r, 69 F.4th 168, 173-75 (4th Cir. 2023) (noting disagreement by the judicial
circuits as to the best approach for assessing when compensation paid to a corporate executive is a “reasonable”
business expense that may be deductible for tax purposes by the corporation).
74 For example, in United States v. Zheng, 87 F.4th 336, 343 (6th Cir. 2023), the Sixth Circuit wrote that to prove the
criminal offense of harboring unlawfully present aliens for commercial gain, the government need not prove the
defendant “knowingly” harbored such persons. The majority considered that statement to be in conflict with the
Eleventh Circuit. Judge Kethledge wrote separately, however, characterizing that statement as non-binding dictum. Id.
at 347.
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Table 1. Circuit Splits Recognized in 2023
Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Arbitration
First Circuit
Fraga v. Premium Retail
The First Circuit declined to adopt the Second Circuit’s position on
Second Circuit
Servs., Inc., 61 F.4th
the scope of the exemption from the Federal Arbitration Act (FAA)
(Bissonnette v. LePage
228 (1st Cir. 2023)
for transportation workers engaged in foreign or interstate
Bakeries Park St., LLC, 49
commerce. In 2022, the Supreme Court held in Southwest Airlines Co. F.4th 655 (2d Cir. 2022),
v. Saxon that the exception is based on a worker’s actual duties, and
cert. granted, Bissonnette v.
that merely working in a transportation industry is not sufficient to
LePage Bakeries Park St.,
qualify. Applying Saxon in Bissonnette v. LePage Bakeries, the Second
No. 23-51, 144 S. Ct. 479
Circuit held that, while employment in a transportation industry is
(2023))
not sufficient to qualify for the exception, it is a necessary condition.
The First Circuit rejected this approach because, under circuit
precedent, people who do not work for the transportation
business, such as “last-mile drivers” employed by online retailer
Amazon, may stil qualify for the exemption.
Arbitration
First Circuit
Green Enters., LLC v.
The First Circuit split with the Second Circuit after it considered
Second Circuit (Stephens v.
Hiscox Syndicates Ltd.,
the interplay between Puerto Rico law, a federal statute, and a U.S.
Am. Int’l Ins. Co., 66 F.3d
68 F.4th 662 (1st Cir.
treaty when affirming a district court’s order to compel arbitration
41 (2d Cir. 1995))
2023)
in an insurance dispute. The panel held that a provision in the
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards directing courts to channel covered disputes to arbitration
was self-executing, meaning it was enforceable by U.S. courts
without need for implementing legislation.
Arbitration
Ninth Circuit
Forrest v. Spizzirri, 62
The Ninth Circuit held that a district court has discretion to dismiss Second Circuit (Katz v.
F.4th 1201 (9th Cir.
a suit after determining that the claims it raises are arbitrable. The
Cellco P'ship, 794 F.3d (2d
2023), cert. granted sub
panel reaffirmed its alignment with the First, Fifth, and Eighth
Cir. 2015))
nom. Smith v. Spizzirri,
Circuits and disagreement with the Second, Third, Sixth, Seventh,

144 S. Ct. 680 (2024)
Tenth, and Eleventh Circuits. The other side of the circuit split
holds that Section 3 of the Federal Arbitration Act requires the
Third Circuit (Lloyd v.
court to stay rather than dismiss the case while arbitration is
HOVENSA, LLC, 369 F.3d
pending.
263 (3d Cir. 2004))

Sixth Circuit (Arabian
Motors Grp. W.L.L. v. Ford
CRS-13

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Motor Co., 19 F.4th 938
(6th Cir. 2021))

Seventh Circuit (Cont'l
Cas. Co. v. Am. Nat'l Ins.,
417 F.3d 727, 732 n. 7 (7th
Cir. 2005))

Tenth Circuit (Adair Bus
Sales, Inc. v. Blue Bird
Corp., 25 F.3d 953 (10th
Cir.1994))

Eleventh Circuit (Bender v.
A.G. Edwards & Sons, Inc.,
971 F.2d 698, 699 (11th
Cir.1992) (per curiam))

Note: The Ninth Circuit
did not identify the specific
Third, Seventh, Tenth, and
Eleventh Circuit cases that
took a different approach,
but cited the Second
Circuit’s opinion in Katz
that referenced these
cases.
Bankruptcy
Second Circuit
In re Purdue Pharma
Joining most circuits, the Second Circuit held that two provisions of
Fifth Circuit (Bank of N.Y.
L.P., 69 F.4th 45 (2d
the Bankruptcy Code—11 U.S.C. §§ 105(a) and 1123(b)(6)—jointly
Tr. Co. v. Official
Cir.), cert. granted sub
provide a basis for a bankruptcy court to approve a Chapter 11
Unsecured Creditors’
nom. Harrington v.
bankruptcy plan allowing nonconsensual, third-party releases of
Comm., 584 F.3d 229 (5th
Purdue Pharma L.P.,
direct claims against nondebtors. The case here involved Purdue
Cir. 2009))
144 S. Ct. 44 (2023)
Pharma’s filing for bankruptcy after costly civil litigation over its

introduction of the opioid OxyContin into the pharmaceutical
CRS-14

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
market. The bankruptcy court authorized the release of many civil
Ninth Circuit (Resorts Int’l,
litigation claims against the Sackler family, which owned and
Inc. v. Lowenschuss, 67
operated Purdue Pharma for decades, contingent upon the family’s
F.3d 1394 (9th Cir. 1995))
agreeing to contribute bil ions to the company’s bankruptcy estate

to fund settlements with both private litigants and the federal
government. The circuit court set forth a multifactor test for when
Tenth Circuit (Landsing
the nonconsensual, third-party release of direct claims against
Diversified Props.-II v. First
nondebtors may be permitted, and concluded that those factors
Nat’l Bank and Tr. Co. of
were satisfied in this case.
Tulsa, 922 F.2d 592 (10th
Cir. 1990))
Bankruptcy
Tenth Circuit
Mil er v. United States,
The Tenth Circuit held that the government’s waiver of sovereign
Seventh Circuit (In re
71 F.4th 1247 (10th
immunity in § 106(a) of the Bankruptcy Code extends to claims by a Equip. Acquisition Res.,
Cir. 2023), petition for
trustee proceeding under § 544(b)(1) to void a transfer of
Inc., 742 F.3d 743 (7th Cir.
cert. filed, No. 23-824
property—here tax payments to the Internal Revenue Service—
2014))
(U.S. Jan. 31, 2024)
under state law. The court found the plain language of the waiver
broadly extended to state law claims that formed the “applicable
law” under § 544. The decision widens a circuit split, with the Tenth
Circuit agreeing with the Fourth and Ninth Circuits’ reasoning and
departing from the analysis of the Seventh Circuit.
Civil Liability
Second Circuit
Horn v. Med. Marijuana, The Second Circuit, disagreeing with the approach taken by the
Sixth Circuit (Jackson v.
Inc., 80 F.4th 130 (2d
Sixth Circuit, held that the civil-action provision of the Racketeer
Sedgwick Claims Mgmt.
Cir. 2023), petition for
Influenced and Corrupt Organizations Act (RICO) does not bar a
Servs., Inc., 731 F.3d 556
cert. filed, No. 23-365
suit for damages simply because those damages flow from a
(6th Cir. 2013) (en banc))
(U.S. Oct. 5, 2023)
personal injury. The plaintiff consumed a hemp-derived product that
was marketed as free from tetrahydrocannabinol (THC), then lost
his job fol owing a positive drug test for THC. The plaintiff sued the
product’s marketers under RICO for damages, including lost wages.
The district court had granted summary judgment for the
defendants on the grounds that RICO only permits recovery for
injury “to business or property.” The Second Circuit reversed,
holding that lost earnings resulting from a personal injury are
potentially recoverable.
Civil Procedure
Fifth Circuit
Raskin ex rel. JD1 & JD2 The Fifth Circuit held that 28 U.S.C. § 1654—which allows parties
Second Circuit (Cheung v.
v. Dall. Indep. Sch.
to pursue “their own cases” pro se in federal court—does not
Youth Orchestra Found. of
establish an absolute bar against parents proceeding pro se on
CRS-15

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Dist., 69 F.4th 280 (5th
behalf of their minor children, a holding the court recognized
Buffalo, Inc., 906 F.2d 59
Cir. 2023)
conflicts with those of 10 other circuits. While the control ing
(2d Cir. 1990))
opinion recognized that § 1654 did not abrogate the common-law

rule that typically barred parents from representing their children
pro se, the panel majority concluded that this rule does not apply if
Third Circuit (Osei-Afriyie
a federal or state law designated a child’s case as belonging to the
ex rel. Osei-Afriyie v. Med.
parent.
Col . of Pa., 937 F.2d 876
(3d Cir. 1991))

Fourth Circuit (Myers v.
Loudoun Cnty. Pub. Schs.,
418 F.3d 395 (4th Cir.
2005))

Sixth Circuit (Shepherd v.
Wellman, 313 F.3d 963
(6th Cir. 2002))

Seventh Circuit (Navin v.
Park Ridge Sch. Dist. 64,
270 F.3d 1147 (7th Cir.
2001))

Eighth Circuit (Crozier ex
rel. A.C. v. Westside Cmty.
Sch. Dist., 973 F.3d 882
(8th Cir. 2020))

Ninth Circuit (Johns v.
Cnty. of San Diego, 114
F.3d 874 (9th Cir. 1997))

Tenth Circuit (Meeker v.
Kercher, 782 F.2d 153, 154
CRS-16

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
(10th Cir. 1986) (per
curiam))

Eleventh Circuit (Devine v.
Indian River Cnty. Sch. Bd.,
121 F.3d 576 (11th Cir.
1997), overruled in part on
other grounds, Winkelman
ex rel. Winkelman v. Parma
City Sch. Dist., 550 U.S.
516 (2007))
Civil Procedure
Seventh Circuit
Schmees v. HC1.com,
The Seventh Circuit held that district courts may construe new
Fifth Circuit (Cutrera v. Bd.
Inc., 77 F.4th 483 (7th
allegations raised in a party’s brief, here a response to a motion for
of Supervisors of Louisiana
Cir. 2023)
summary judgment, as a constructive motion to amend. The court
State Univ., 429 F.3d 108
widened a circuit split on the authority of district courts to infer a
(5th Cir. 2005))
motion to amend a complaint. The court found no blanket

prohibition in the Federal Rules of Civil Procedure, and it further
stated that district courts are in the best position to rule on
Sixth Circuit (Bridgeport
whether such a constructive motion satisfies the standard for
Music, Inc. v. WM Music
obtaining leave to amend.
Corp., 508 F.3d 394 (6th
Cir. 2007))

Eleventh Circuit (White v.
Beltram Edge Tool Supply,
Inc., 789 F.3d 1188 (11th
Cir. 2015))

Note: The Seventh Circuit
did not identify the specific
Sixth and Eleventh Circuit
cases that took a different
approach but cited a Tenth
Circuit case, Adams v. C3
Pipeline Const. Inc., 30 F.4th
943, 971 & n.12 (10th Cir.
CRS-17

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
2021), that specifically
identified the diverging
cases.
Civil Procedure
Ninth Circuit
Ernest Bock, LLC v.
The Ninth Circuit reversed a district court’s stay issued pursuant to Seventh Circuit (Loughran
Steelman, 76 F.4th 827
the Supreme Court’s decision in Colorado River Water Conservation
v. Wells Fargo Bank, N.A.,
(9th Cir. 2023), cert.
District v. United States (Colorado River). Under Colorado River, federal
2 F.4th 640 (7th Cir. 2021))
denied, 144 S. Ct. 554
courts can stay a federal case in “exceptional circumstances” during
(2024)
the pendency of state court litigation on related claims. The court,
acknowledging conflicting authority from at least one circuit, joined
other circuits in holding that a Colorado River stay cannot issue when
there is substantial doubt as to whether the state proceedings
would resolve the federal action. In this case, federal litigation
would only be resolved if the parallel state court proceedings end in
one of several possible outcomes, which the court held was too
uncertain to justify a stay.
Civil Procedure
Ninth Circuit
Isaacson v. Mayes, 84
The Ninth Circuit found that obstetricians/gynecologists who
Eleventh Circuit (Bankshot
F.4th 1089 (9th Cir.
regularly performed abortions in cases involving fetuses with genetic Bil iards, Inc. v. City of
2023)
abnormalities had standing to seek an injunction to block the
Ocala, 634 F.3d 1340 (11th
enforcement of an Arizona law criminalizing the performance of
Cir. 2011))
such abortions. The panel decided that plaintiffs identified actual and
imminent injuries based on lost revenues for abortions they could
not perform and the imminent threat of criminal prosecution.
Disagreeing with the framework employed by the Eleventh Circuit,
the panel held that contrary to the lower court’s ruling upon
remand, the plaintiffs did not need to tie their economic injury to a
constitutional right to establish standing, but only had to show an
injury to their business activity fairly traceable to the statute, which
they did. The panel reversed the lower court and remanded for it
to consider plaintiffs’ motion for a preliminary injunction on the
merits.
Civil Procedure
Tenth Circuit
Black v. Occidental
The Tenth Circuit joined nearly every other circuit court as to the
Third Circuit (Russell v.
Petrol. Corp., 69 F.4th
procedural standard for certifying an “issue class”—that is, for
Educ. Comm’n for Foreign
1161 (10th Cir. 2023)
treating part of a case as a class action when class certification is not Med. Graduates, 15 F.4th
warranted for the case as a whole. The court held that issue
259 (3d Cir. 2021))
certification under Federal Rule of Civil Procedure 23(c)(4) is
CRS-18

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
appropriate if the issue class itself satisfies Rule 23(a), which
imposes requirements of numerosity, commonality, typicality, and
adequacy, and Rule 23(b)(3), which requires a showing that common
issues predominate over individual issues. This standard deviates
from the Third Circuit, which takes additional steps to certify an
issue class.
Civil Procedure
Eleventh Circuit
Iriele v. Griffin, 65 F.4th The Eleventh Circuit joined several other circuits in holding that 28
Eighth Circuit (Jones ex rel.
1280 (11th Cir. 2023)
U.S.C. § 1654, which allows individuals to represent themselves (i.e., Jones v. Corr. Med. Servs.,
proceed pro se) in federal court, does not allow an executor to
Inc., 401 F.3d 950 (8th Cir.
proceed pro se on behalf of an estate where there are additional
2005))
beneficiaries. The Eleventh Circuit held that the plaintiff was not
legally authorized to represent the estate but that the district court
erred by not providing an opportunity for the plaintiff to obtain
counsel. The panel noted a disagreement with the Eighth Circuit
over whether to adopt a “nul ity rule,” which would have prohibited
the plaintiff from amending the initial pro se complaint.
Civil Procedure
Eleventh Circuit
Positano Place at
A divided Eleventh Circuit held that a district court order
Seventh Circuit (Hayes v.
Naples I Condo. Ass’n
compelling an appraisal in an insurance contract dispute and staying
Allstate Ins. Co., 722 F.2d
v. Empire Indem. Ins.
proceedings pending the appraisal is an interlocutory order not
1332 (7th Cir. 1983))
Co., 84 F.4th 1241
immediately appealable under 28 U.S.C. § 1292(a)(1). The majority
(11th Cir. 2023)
disagreed with a Seventh Circuit decision, which had found appellate
jurisdiction over an appraisal order without conducting a
jurisdictional analysis. The majority further held that an order
compelling an appraisal is not immediately appealable under the
Federal Arbitration Act. Assuming that the order compelling an
appraisal pertained to an arbitration, the court found no appellate
jurisdiction because the order was not a final decision.
Civil Rights
Second Circuit
Eisenhauer v. Culinary
Deepening a circuit split, a divided Second Circuit held that
Sixth Circuit (Equal Emp.
Inst. of Am., 84 F.4th
establishing a “factor other than sex” defense to a disparate pay
Opportunity Comm’n v.
507 (2d Cir. 2023)
claim under the Equal Pay Act requires proving only that the pay
J.C. Penney Co., 843 F.2d
disparity resulted from a differential based on any factor other than
249 (6th Cir. 1988))
sex. The control ing opinion rejected the argument that a defendant

must also prove that the differential is job related.
CRS-19

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Ninth Circuit (Rizo v.
Yovino, 950 F.3d 1217 (9th
Cir. 2020))

Tenth Circuit (Riser v. QEP
Energy, 776 F.3d 1191
(10th Cir. 2015))

Eleventh Circuit (Glenn v.
Gen. Motors Corp., 841
F.2d 1567 (11th Cir. 1988))
Civil Rights
Fourth Circuit
Laufer v. Naranda
The Fourth Circuit deepened a circuit split in ruling that a plaintiff
Second Circuit (Harty v.
Hotels, LLC, 60 F.4th
met constitutional standing requirements to sue a hotel under the
W. Point Realty, Inc., 28
156 (4th Cir. 2023)
Americans with Disabilities Act (ADA) and its regulations for failing
F.4th 435 (2d Cir. 2022))
to provide information and reservations for accessible rooms on its

internet booking platforms. The court reasoned that the plaintiff had
standing, whether or not she intended to visit the hotel, because
Fifth Circuit (Laufer v.
she alleged that the hotel denied her the information required by
Mann Hosp., L.L.C., 996
ADA hotel regulations to facilitate meaningful choices for travel.
F.3d 269 (5th Cir. 2021))
Including this opinion, at least six circuits have now issued

precedential decisions in similar cases in the last three years, with
Tenth Circuit (Laufer v.
the First, Fourth, and Eleventh Circuits concluding that
Looper, 22 F.4th 871 (10th
constitutional standing requirements were satisfied, and the Second,
Cir. 2022))
Fifth, and Tenth Circuits holding that they were not.

Note: The Supreme Court
agreed to review a case
that would enable it to
resolve this circuit split, but
after the plaintiff sought to
voluntarily dismiss the case,
the Court instead
remanded the case with
instructions to dismiss as
moot. Laufer v. Acheson
CRS-20

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Hotels, LLC, 50 F.4th 259,
263 (1st Cir. 2022), cert.
granted, 143 S. Ct. 1053
(2023), and vacated and
remanded, 144 S. Ct. 18
(2023).
Civil Rights
Fourth Circuit
Bulger v. Hurwitz, 62
The Fourth Circuit disagreed with another federal appeals court as
Third Circuit (Bistrian v.
F.4th 127 (4th Cir.
to whether prison officials may be liable for monetary damages for
Levi, 912 F.3d 79 (3d Cir.
2023)
failing to protect prisoners from attack by fellow inmates. The
2018))
plaintiff, representing the estate of former inmate James “Whitey”
Bulger, sued for violations of the Eighth Amendment in a claim
brought pursuant to Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics. In Bivens, the Supreme Court recognized an
implied cause of action for persons seeking monetary damages for
constitutional violations committed by certain federal officials. A
Bivens remedy, however, is available only in a narrow set of
circumstances. In disagreeing with the Third Circuit’s decision to
allow a similar lawsuit to go forward, the Fourth Circuit ruled that
Eighth Amendment failure-to-protect claims are not a recognized
Bivens context.
Civil Rights
Fifth Circuit
Armstrong v. Ashley,
The Fifth Circuit added to a circuit split over the elements required
First Circuit (Nieves v.
60 F.4th 262 (5th Cir.
to prove the constitutional tort of malicious prosecution. The court
McSweeney, 241 F.3d 46
2023)
held that the Supreme Court’s 2022 decision in Thompson v. Clark,
(1st Cir. 2001))
which recognized the constitutional tort, did not resolve the circuit

split as to whether a plaintiff must make a showing of malice. The
Fifth Circuit panel held that Thompson overruled an en banc decision Third Circuit (Gallo v. City
of the Fifth Circuit and reinstated an earlier Fifth Circuit decision
of Philadelphia, 161 F.3d
that made malice a necessary component of a malicious prosecution 217 (3d Cir. 1998))
claim.

Fourth Circuit (Brooks v.
City of Winston-Salem,
N.C., 85 F.3d 178 (4th Cir.
1996))
CRS-21

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Civil Rights
Fifth Circuit
United States v.
In a suit brought by the United States against the State of
Second Circuit (Davis v.
Mississippi, 82 F.4th 387 Mississippi, the Fifth Circuit reversed a lower court ruling that the
Shah, 821 F.3d 231 (2d Cir.
(5th Cir. 2023)
state’s mental health care system violated Title II of Americans with
2016))
Disabilities Act (ADA). The lower court held that the system placed
adults with severe mental il ness at risk of unjustified
institutionalization in contravention of the ADA’s mandate—
Fourth Circuit (Pashby v.
reflected in ADA regulations and caselaw—that persons with
Delia, 709 F.3d 307 (4th
disabilities be placed in the most integrated setting possible. As a
Cir. 2013))
remedy, the lower court ordered the state to expand its

community-based mental health services. The Fifth Circuit held that
Sixth Circuit (Waskul v.
unspecified persons’ possible “risk” of unjustified institution does
Washtenaw Cnty. Cmty.
not give rise to a concrete harm under Title II of the ADA. In
Mental Health, 979 F.3d
reaching this conclusion, the court split with other circuits that
426 (6th Cir. 2020))
deferred to a Department of Justice guidance document that

concluded a serious risk of institutionalization is enough to establish
a claim. The Fifth Circuit also held that the lower court’s injunction
Seventh Circuit (Steimel v.
was too broad and required far more than necessary for the state
Wernert, 823 F.3d 902
to comply with Title II.
(7th Cir. 2016))

Ninth Circuit (M.R. v.
Dreyfus, 663 F.3d 1100
(9th Cir. 2011), opinion
amended and superseded on
denial of reh’g, 697 F.3d 706
(9th Cir. 2012))
Civil Rights
Sixth Circuit
Chambers v. Sanders,
The Sixth Circuit held that children seeking redress for the wrongful Ninth Circuit (Smith v. City
63 F.4th 1092 (6th Cir.
incarceration of a parent, absent state action against the children
of Fontana, 818 F.2d 1411
2023)
themselves, do not have a claim under 42 U.S.C. § 1983, which
(9th Cir. 1987), overruled on
creates a private cause of action if a state actor violates rights
other grounds by Hodgers-
established by the Constitution. The court held that the claim at
Durgin v. de la Vina, 199
issue failed because, even assuming that the children had a right to
F.3d 1037 (9th Cir. 1999))
family integrity under the Fourteenth Amendment, they did not

prove the state acted with the intent to disrupt their family
integrity. The case creates a circuit split with at least the Ninth
CRS-22

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Circuit, which allows children to sue for harm caused by the
wrongful incarceration of a parent without additional state action.
Civil Rights
Seventh Circuit
M.C. ex rel. A.C. v.
The Seventh Circuit upheld preliminary injunctions allowing
Eleventh Circuit (Adams by
Metro. Sch. Dist., 75
transgender boys to use boys’ bathrooms and locker rooms in their
& through Kasper v. Sch.
F.4th 760 (7th Cir.
schools. The court declined to overrule a prior decision that
Bd. of St. Johns Cnty., 57
2023), cert. denied, 144
equated discrimination based on gender identity to sex
F.4th 791 (11th Cir. 2022)
S. Ct. 683 ( 2024)
discrimination. Recognizing a circuit split in cases with substantially
(en banc))
similar facts, the court held, among other things, that the plaintiffs
were likely to succeed on their claims alleging sex discrimination in
violation of Title IX of the Education Amendments Act of 1972 and
the Equal Protection Clause of the Fourteenth Amendment.
Civil Rights
Eighth Circuit
Klossner v. IADU Table A divided panel of the Eighth Circuit held that landlords are not
Ninth Circuit (Giebeler v.
Mound MHP, LLC, 65
required to accept government housing vouchers that they would
M & B Associates, 343 F.3d
F.4th 349 (8th Cir.),
not otherwise accept as a “reasonable accommodation” under the
1143 (9th Cir. 2003))
cert. denied, 144 S. Ct.
Fair Housing Amendments Act (FHAA). The FHAA generally

328 (2023)
requires landlords to make reasonable accommodations when
necessary to afford an individual with a disability equal opportunity
to use and enjoy a dwelling. The majority held that a reasonable
accommodation under the FHAA must directly ameliorate the
effects of a disability, which does not include ameliorating economic
hardships. The Eighth Circuit, joining the Second and Seventh
Circuits, split with the Ninth Circuit, which has held that reasonable
accommodations sometimes extend to the individual’s economic
circumstances
Civil Rights
Ninth Circuit
Sinclair v. City of
In a parent’s civil rights action against the City of Seattle fol owing
First Circuit (Valdivieso
Seattle, 61 F.4th 674
the 2020 death of her son in the Capitol Hil Occupied Protest
Ortiz v. Burgos, 807 F.2d 6
(9th Cir.), cert. denied,
zone, the Ninth Circuit added to a circuit split by recognizing a
(1st Cir. 1986))
144 S. Ct. 88 ( 2023)
Fourteenth Amendment substantive due process right to

companionship with one’s adult children. The court joined the
Tenth Circuit in recognizing a constitutional right to companionship; Third Circuit (McCurdy v.
however, the Tenth Circuit grounded that right in the First
Dodd, 352 F.3d 820 (3d
Amendment’s freedom of association. Despite recognizing this
Cir. 2003))
substantive due process right, the Court affirmed the district court’s
dismissal of the parent’s civil rights case because the city’s actions
were not directed at the deceased.
CRS-23

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Seventh Circuit (Russ v.
Watts, 414 F.3d 783 (7th
Cir. 2005))

Tenth Circuit (Trujil o v.
Bd. of Cnty. Comm’rs of
Santa Fe Cnty., 768 F.2d
1186 (10th Cir. 1985))

Eleventh Circuit
(Robertson v. Hecksel, 420
F.3d 1254 (11th Cir. 2005))

D.C. Circuit (Butera v.
District of Columbia, 235
F.3d 637 (D.C. Cir. 2001))
Civil Rights
Eleventh Circuit
Campbell v. Universal
In a case challenging a waterpark’s refusal to allow a person with
Sixth Circuit (Brickers v.
City Dev. Partners, 72
one natural hand to use a water ride, the Eleventh Circuit held that
Cleveland Bd. of Educ., 145
F.4th 1245 (11th Cir.
the park had not shown it complied with the Americans with
F.3d 846 (6th Cir. 1998))
2023)
Disabilities Act (ADA). The ADA generally bars a public
accommodation from excluding someone with a disability except
when “necessary.” The water park argued its eligibility requirements
were “necessary” because they were compelled by state law.
Acknowledging disagreement with the Sixth Circuit, the court held
that compliance with state law is not “necessary” under the ADA,
which preempts conflicting state requirements. The court remanded
for further proceedings on whether the refusal was “necessary”
because of actual safety concerns.
CRS-24

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Civil Rights
Eleventh Circuit
Stanley v. City of
The Eleventh Circuit reaffirmed an earlier decision holding that Title Second Circuit (Castellano
Sanford, 83 F.4th 1333
I of the Americans with Disabilities Act does not permit a former
v. City of New York, 142
(11th Cir. 2023),
employee to sue for discrimination based on post-employment
F.3d 58 (2d Cir. 1998))
petition for cert. filed,
distribution of fringe benefits. The plaintiff sued her former

No. 23-997 (U.S. Mar.
employer under Title I for terminating the health insurance subsidy
12, 2024)
she had received when she retired for qualifying disability reasons,
Third Circuit (Ford v.
but the court concluded that a Title I plaintiff must hold or seek a
Schering-Plough Corp., 145
position with the defendant at the time of the allegedly
F.3d 60 (3d Cir. 1998))
discriminatory act. This decision reaffirmed the Eleventh Circuit’s
alignment with the Sixth, Seventh, and Ninth Circuits in a circuit
split on the issue with the Second and Third Circuits.
Consumer
Second Circuit
CFPB v. Law Offices of
The Second Circuit affirmed a district court’s decision to grant a
Fifth Circuit (Cmty. Fin.
Protection
Crystal Moroney, P.C.,
Consumer Financial Protection Bureau (CFPB) petition to enforce a
Servs. Ass’n of Am., Ltd. v.
63 F.4th 174 (2d Cir.
civil investigative demand (CID). The CFPB served plaintiff a CID for Consumer Fin. Prot.
2023), petition for cert.
documents related to an investigation. Plaintiff argued, among other
Bureau, 51 F.4th 616 (5th
filed, No. 22-1233 (U.S.
things, that the CID could not be enforced because the CFPB’s
Cir. 2022), cert. granted,
Jun. 23, 2023)
funding structure violates the Constitution’s Appropriations Clause,
143 S. Ct. 978 (2023))
and Congress violated the nondelegation doctrine when it created
the CFPB’s funding structure in the Consumer Financial Protection
Act (CFPA) because it did not articulate an intelligible principle to
guide the President. Declining to fol ow a 2022 Fifth Circuit decision
on the same issue, the Second Circuit rejected plaintiff’s arguments
and affirmed the district court’s decision to enforce the CID. The
court explained that, contrary to the Fifth Circuit, it could not find
any support in the text or history of the Appropriations Clause (or
Supreme Court precedent) to support the conclusion that the
CFPB’s funding structure was impermissible.
Consumer
Ninth Circuit
Brown v. Transworld
The Ninth Circuit joined other circuits in holding that every claim
Tenth Circuit (Johnson v.
Protection
Sys., Inc., 73 F.4th 1030
made under the Fair Debt Col ection Practices Act (FDCPA) has its
Riddle, 305 F.3d 1107 (10th
(9th Cir. 2023)
own one-year statute of limitations, and that certain acts taken in a
Cir. 2002))
meritless debt-col ection lawsuit can give rise to distinct FDCPA
claims. In an FDCPA suit challenging a debt-col ection lawsuit, the
control ing opinion held that service and filing may give rise to
distinct FDCPA claims when service occurs before filing. The
majority expressed disagreement with a Tenth Circuit decision
CRS-25

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
characterized as treating service and filing as components of a single
actionable wrong.
Criminal Law &
First Circuit
United States v.
The First Circuit declined to apply the Ninth Circuit’s standard for
Ninth Circuit (United
Procedure
Munera-Gomez, 70
prosecutorial misconduct based on the denial of use immunity for
States v. Westerdahl, 945
F.4th 22 (1st Cir. 2023), defense witnesses. Use immunity protects witnesses from having
F.2d 1083 (9th Cir. 1991))
petition for cert. filed,
their testimony used as evidence against them in court. The First
No. 23-485 (U.S. Nov.
Circuit held that the “effective defense theory,” under which a
8, 2023)
strong need for exculpatory testimony can override the
government’s objection to use immunity, is not good law in that
circuit. Instead, the court applied First Circuit precedent, whereby
the government may defeat a chal enge to the denial of use
immunity by offering a plausible reason for denying such immunity.
The court found plausible the government’s position that it wanted
to avoid potential obstacles to prosecuting the defense witness in
question on pending federal charges.
Criminal Law &
First Circuit
United States v.
The First Circuit held that a sentencing enhancement for the use or
Sixth Circuit (United States
Procedure
Vaquerano Canas, 81
attempted use of a minor in the commission of a crime is valid as
v. Butler, 207 F.3d 839 (6th
F.4th 86 (1st Cir. 2023), applied to defendants aged 18 to 21, joining most circuits that have
Cir. 2000))
petition for cert. filed,
considered the issue. In the Violent Crime Control and Law
No. 23-6131 (U.S. Nov. Enforcement Act of 1994, Congress directed the United States
29, 2023)
Sentencing Commission to create a minor-use enhancement in the
United States Sentencing Guidelines for defendants “21 years of age
or older.” The Commission’s broader proposed enhancement—
which did not contain the 21-years-of-age threshold—took effect
after Congress did not revise or disapprove the proposal during the
applicable review period. The First Circuit held that the
Commission acted under its general statutory powers in proposing
the enhancement and that the enhancement does not conflict with
the congressional directive, explaining that the enhancement stil
applies to defendants aged 21-and-over and that the Commission
has the discretion to implement the directive in a broader manner.
CRS-26

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Criminal Law &
Third Circuit
Clark v. United States,
The Third Circuit held that a federal defendant who obtains habeas
Fourth Circuit (United
Procedure
76 F.4th 206 (3d Cir.
relief under 28 U.S.C. § 2255 but wishes to appeal the district
States v. Hadden, 475 F.3d
2023), petition for cert.
court’s choice of remedy under that provision must obtain a
652 (4th Cir. 2007))
filed, No. 23-5950 (U.S.
certificate of appealability (COA) in accordance with 28 U.S.C.

Nov. 3, 2023)
§ 2253(c). If a district court determines that a defendant’s sentence
is unlawful under § 2255, it then selects between discharging the
Sixth Circuit (Ajan v.
defendant, resentencing, granting a new trial, or correcting the
United States, 731 F.3d 629
sentence. In holding that a COA is required to appeal a district
(6th Cir. 2013))
court’s choice among these options, the Third Circuit aligned with
the Eleventh Circuit but rejected the contrary position of the
Fourth and Sixth Circuits.
Criminal Law &
Third Circuit
United States v. Porat,
The Third Circuit upheld a defendant’s conviction for wire fraud
Ninth Circuit (United
Procedure
76 F.4th 213 (3d Cir.
and conspiracy to commit wire fraud. The court rejected the
States v. Lew, 875 F.2d 219
2023), petition for cert.
defendant’s argument that the federal wire fraud statute, 18 U.S.C.
(9th Cir. 1989))
filed, No. 23-832 (U.S.
§ 1343, requires a scheme to personally obtain property, agreeing
Feb. 2, 2024)
instead with the Second Circuit that a scheme to obtain property
for a third party suffices for purposes of the statute. Acknowledging
a break with the Ninth Circuit, the court also joined six other
circuits in rejecting the argument that the federal wire fraud statute
requires “convergence,” that is, a requirement that the party
deceived by the defendant must also be the party defrauded of
property.
Criminal Law &
Fourth Circuit
United States v. Jones,
The Fourth Circuit added to a circuit split over the meaning of 18
Fifth Circuit (United States
Procedure
60 F.4th 230 (4th Cir.
U.S.C. § 3553(f), the “safety valve” exception for mandatory
v. Palomares, 52 F.4th 640
2023), cert. granted and
minimum sentences available for certain drug trafficking and
(5th Cir. 2022))
judgment vacated, No.
unlawful possession offenses. Section 3553(f), as amended by the

23-46 (U.S. Mar. 25,
First Step Act, provides that the exception may apply to persons
2023)
convicted of covered offenses who do “not have—(A) more than 4
Sixth Circuit (United States
v. Haynes, 55 F.4th 1075

criminal history points ... ; (B) a prior 3-point offense ... ; and (C) a
prior 2-point offense.” The Fourth Circuit disagreed with the Fifth,
(6th Cir. 2022))

Sixth, Seventh, and Eight Circuits, which have held the word “and”

between subsections (B) and (C) should be read distributively, so
Seventh Circuit (United
that defendants are ineligible if they fail any of the three conditions.
States v. Pace, 48 F.4th 741
The Fourth Circuit joined the Ninth and Eleventh Circuits in holding (7th Cir. 2022))

CRS-27

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
that defendants are eligible so long as they do not meet all three
Eighth Circuit (United
conditions.
States v. Pulsifer, 39 F.4th
The Supreme Court resolved this circuit split when it subsequently
1018 (8th Cir. 2022))
decided Pulsifer v. United States, No. 22-340, 2024 WL 1120879 (U.S.
Mar. 15, 2024). The Supreme Court disagreed with the position of
the Fourth Circuit here.
Criminal Law &
Fourth Circuit
In re Graham, 61 F.4th
The Fourth Circuit held that 28 U.S.C. § 2244(b)(1), which requires
Second Circuit (Gallagher
Procedure
433 (4th Cir. 2023)
dismissal of “[a] claim presented in a second or successive habeas
v. United States, 711 F.3d
corpus application under section 2254 that was presented in a prior
315 (2d Cir. 2013))
application,” does not apply to federal prisoners. Under

the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), a person imprisoned pursuant to the judgment of a state
Third Circuit (United
court may apply for post-conviction relief under 28 U.S.C. § 2254,
States v. Winkelman, 746
while a person imprisoned pursuant to the judgment of a federal
F.3d 134 (3d Cir. 2014))
court may apply under § 2255. Joining the Sixth and Ninth Circuits,

and rejecting the reasoning from several other circuits, the Fourth
Fifth Circuit (In re
Circuit held that the requirement in § 2255(h) for a federal appellate Bourgeois, 902 F.3d 446
court to certify a second or successive application “as provided in
(5th Cir. 2018))
section 2244” incorporates only the filing requirements set forth in

§ 2244(b)(3), but not the criteria for dismissal in § 2244. The Fourth
Circuit held that § 2244(b)(1), by its plain text, applies only to state
Seventh Circuit (Taylor v.
claims under § 2254, and such a reading was consistent with the
Gilkey, 314 F.3d 832 (7th
policy purposes of AEDPA.
Cir. 2002))

Eighth Circuit (Winarske v.
United States, 913 F.3d 765
(8th Cir. 2019))

Eleventh Circuit (In re
Baptiste, 828 F.3d 1337
(11th Cir. 2016))
Criminal Law &
Fifth Circuit
Gomez Barco v. Witte,
The Fifth Circuit added to a circuit split in holding that habeas
Second Circuit (Vacchio v.
Procedure
65 F.4th 782 (5th Cir.
corpus petitioners may not recover attorneys’ fees against the
Ashcroft, 404 F.3d 663 (2d
United States under the Equal Access to Justice Act (EAJA). The
Cir. 2005))
CRS-28

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
2023), cert. denied, 144
court reasoned that the EAJA is a limited waiver of sovereign

S. Ct. 553 (2024)
immunity against the United States in specific civil actions. Habeas
Ninth Circuit (In re
corpus actions, the court ruled, are not purely civil actions, but are
Petition of Hil , 775 F.2d
a hybrid, with characteristics indicative of both civil and criminal
1037 (9th Cir. 1985))
actions.
Criminal Law &
Fifth Circuit
United States v. Vargas,
A divided en banc Fifth Circuit held that engaging in multiple drug
Third Circuit (United
Procedure
74 F.4th 673 (5th Cir.
conspiracies counts as committing multiple drug crimes, qualifying
States v. Nasir, 17 F.4th
2023) (en banc), cert.
the defendant for harsher sentences under the United States
459 (3d Cir. 2021) (en
denied, No. 23-5875
Sentencing Guidelines. The majority deferred to the Sentencing
banc))
(U.S. Feb. 20, 2024)
Commission’s official commentary to the Guidelines, which provides
that a control ed substance offense for purposes of the career
offender guideline includes drug conspiracies. In finding the official
Sixth Circuit (United States
commentary authoritative and entitled to a high degree of
v. Riccardi, 989 F.3d 476
deference, the Fifth Circuit joined the First, Second, Fourth,
(6th Cir. 2021))
Seventh, and Tenth Circuits, in contrast with the Third, Sixth,

Ninth, and Eleventh Circuits, which accord lesser deference to the
Ninth Circuit (United
commentary.
States v. Castil o, 69 F.4th
648 (9th Cir. 2023))

Eleventh Circuit (United
States v. Dupree, 57 F.4th
1269 (11th Cir. 2023) (en
banc))

Note: The Fifth Circuit
described itself as agreeing
with the position taken by
the Fourth Circuit in United
States v. Moses, 23 F.4th
347 (4th Cir. 2022), cert.
denied, 143 S. Ct. 640
(2023), but also observed
that its position differed
from the view taken by the
Fourth Circuit in United
CRS-29

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
States v. Campbell, 22 F.4th
438 (4th Cir. 2022),
decided shortly before
Moses. United States v.
Vargas, 74 F.4th 673, 682-
83 (5th Cir. 2023) (en
banc) (agreeing with
Moses); id. at 686
(disagreeing with Campbell).
Criminal Law &
Sixth Circuit
United States v.
The Sixth Circuit upheld the denial of a motion to suppress
Second Circuit (United
Procedure
Woolridge, 64 F.4th
incriminating statements under the Fifth Amendment, where
States v. Capers, 627 F.3d
757 (6th Cir. 2023)
Miranda warnings were provided “midstream,” or in the middle of
470 (2d Cir. 2010))
the defendant’s statements. The court applied an objective standard

to determine the admissibility of statements made after
“midstream” warnings, under which the court probed whether a
Third Circuit (United
reasonable suspect under the circumstances would believe that they States v. Naranjo, 426 F.3d
had a genuine choice to speak to law enforcement after the
221 (3d Cir. 2005))
warnings. The court held that such a genuine choice existed here,

pointing to the defendant’s eagerness to speak to the officers and
Fourth Circuit (United
the officers’ relative disinterest in having the defendant talk. The
States v. Khweis, 971 F.3d
court acknowledged that other circuits weigh subjective
453 (4th Cir. 2020))
considerations, particularly the intent of the officers, in assessing the
admissibility of post-warning statements.
Fifth Circuit (United States
v. Fernandez, 48 F.4th 405
(5th Cir. 2022))

Eighth Circuit (United
States v. Magallon, 984 F.3d
1263 (8th Cir. 2021))
Ninth Circuit (United
States v. Wil iams, 435 F.3d
1148 (9th Cir. 2006))

CRS-30

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Tenth Circuit (United
States v. Guil en, 995 F.3d
1095 (10th Cir. 2021))

Eleventh Circuit (United
States v. Street, 472 F.3d
1298 (11th Cir. 2006))
Criminal Law &
Sixth Circuit
United States v. West,
The Sixth Circuit reversed a district court’s order granting
First Circuit (United States
Procedure
70 F.4th 341 (6th Cir.
compassionate release to a prisoner under the First Step Act. The
v. Trenkler, 47 F.4th 42
2023), cert. denied, No.
district court determined that the prisoner’s sentence was
(1st Cir. 2022))
23-5698 (U.S. Feb. 26,
unconstitutional under the Supreme Court’s decision in Apprendi v.
2024)
New Jersey and granted the prisoner’s motion for release. The Sixth
Circuit held that a sentencing error is not an “extraordinary and
compelling” reason for compassionate release under the First Step
Act and instead can only be corrected by way of a federal habeas
petition. In so holding, the Sixth Circuit joined four other circuits,
while the First Circuit has stated that a sentencing error might
provide a reason for compassionate release.
Criminal Law &
Sixth Circuit
United States v. Jones,
Widening a circuit split, the Sixth Circuit held that the definition of
Second Circuit (United
Procedure
81 F.4th 591 (6th Cir.
“control ed substance offense” for purposes of applying a sentencing States v. Townsend, 897
2023), cert. denied, 144
enhancement to a defendant who commits a firearms offense after a F.3d 66 (2d Cir. 2018))
S. Ct. 611 (2024)
felony conviction for a “control ed substance offense” includes a

prior conviction for a state-law control ed substance offense. The
Second, Fifth, and Ninth Circuits have limited the definition of
Fifth Circuit (United States
“control ed substance offense” by looking only to substances
v. Gomez-Alvarez, 781 F.3d
criminalized by the federal Control ed Substances Act. Relying
787 (5th Cir. 2015))
mainly on a textual analysis, however, the Sixth Circuit agreed with

the Third, Fourth, Seventh, Eighth, and Tenth Circuits that the
Ninth Circuit (United
enhancement incorporates both state and federal control ed
States v. Bautista, 989 F.3d
substance offenses.
698 (9th Cir. 2021))
Criminal Law &
Sixth Circuit
United States v. Rogers, The Sixth Circuit held that an “intervening arrest” under the
Seventh Circuit (United
Procedure
86 F.4th 259 (6th Cir.
Sentencing Guidelines means a custodial arrest that is part of a
States v. Morgan, 354 F.3d
2023)
criminal investigation, and does not include a traffic stop in which a
621 (7th Cir. 2003))
defendant is issued a citation. Under the Sentencing Guidelines,
CRS-31

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
when a defendant is sentenced on the same day for multiple
offenses, they are counted as separate convictions to determine
whether a recidivist penalty applies if the offenses were separated
by an “intervening arrest.” This decision aligned with the Third,
Ninth, and Eleventh Circuits in a circuit split on the issue with the
Seventh Circuit.
Criminal Law &
Seventh Circuit
United States v. Hatley,
Adding to a circuit split, the Seventh Circuit held that a prior
Fourth Circuit (United
Procedure
61 F.4th 536 (7th Cir.
conviction for a Hobbs Act robbery qualifies as a predicate “violent
States v. Gardner, 823 F.3d
2023), cert. denied, 144
felony” for purposes of enhanced sentencing under the Armed
793 (4th Cir. 2016),
S. Ct. 545 (2024)
Career Criminal Act (ACCA). The court reasoned that a Hobbs
overruled on other grounds by
Act robbery is a “violent felony” within the meaning of the ACCA
United States v. Dinkins,
because this crime entails the use of force against persons or
928 F.3d 349 (4th Cir.
property. The court observed that its holding is broadly consistent
2019))
with interpretations adopted by the Fifth, Ninth, and Tenth Circuits

and acknowledged that the Fourth and Sixth Circuits have taken a
different approach.
Sixth Circuit (Raines v.
United States, 898 F.3d 680
(6th Cir. 2018) (per
curiam))
Criminal Law &
Seventh Circuit
United States v. Snyder, The Seventh Circuit affirmed the conviction of a former mayor for,
First Circuit (United States
Procedure
71 F.4th 555 (7th Cir.),
inter alia, federal bribery, in violation of 18 U.S.C. § 666(a)(1)(B).
v. Fernandez, 722 F.3d 1
cert. granted, 144 S. Ct.
The former mayor argued that the statute applies only to bribes and (1st Cir. 2013))
536 (2023)
not gratuities, which are rewards for actions the payee has already

taken or is already committed to take. The court examined the
statute’s text, which does not mention gratuities, and found that the Fifth Circuit (United States
language on “influenced or rewarded” encompassed both briberies
v. Hamilton, 46 F.4th 389
and gratuities. The court was not persuaded by the holdings of
(5th Cir. 2022))
other circuits that had found § 666 did not apply to gratuities.
Criminal Law &
Eighth Circuit
United States v.
The Eighth Circuit held that the federal crime of arson, 18 U.S.C.
Sixth Circuit (United States
Procedure
Lung’aho, 72 F.4th 845
§ 844(f)(1), is not subject to a sentencing enhancement as a “crime
v. Harrison, 54 F.4th 884
(8th Cir. 2023)
of violence” under 18 U.S.C. § 924(c)(3) because it does not
(6th Cir. 2022))
contain, as an element, the use of physical force against the property
of another. Section 844(f)(1) defines arson as “maliciously
damag[ing] or destroy[ing]” a vehicle owned or possessed by an
entity receiving federal funding, and the court interpreted
CRS-32

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
“maliciously” as a willful disregard of the likelihood that property
wil be damaged or destroyed. The court considered the Supreme
Court’s holding in Borden v. United States, which ruled that any crime
that can be committed recklessly does not have, as an element, the
use of physical force. The court acknowledged that circuit courts
have disagreed about how to apply Borden to criminal statutes that
use mental states, like malice, and concluded that Borden required a
crime of violence to contain an element of “targeting” conduct at
someone or something, which the mental state of malice lacks.
Criminal Law &
Ninth Circuit
United States v. Lil ard,
Adding to a circuit split, the Ninth Circuit held that a district court
Eighth Circuit (United
Procedure
57 F.4th 729 (9th Cir.
commits plain error and violates a defendant’s substantial rights
States v. Bossany, 678 F.3d
2023), cert. denied, 144
when it imposes a sentence for violating supervised release that
603 (8th Cir. 2012))
S. Ct. 575 (2024)
exceeds the applicable statutory maximum, regardless of whether
the il egal sentence is shorter than, or equal to, a valid sentence that
is to be served concurrently with the il egal sentence. The district
court sentenced defendant to an il egal y excessive sentence of 36
months for a supervised release violation to be served concurrently
with a valid sentence of 196 months incarceration for conspiracy to
commit bank fraud. The government argued that the defendant’s
substantial rights were not impacted because he would stil have to
serve a longer sentence for the conspiracy conviction. The Ninth
Circuit disagreed, pointing to the potential col ateral consequences
of the additional excessive sentence.
Criminal Law &
Ninth Circuit
Duarte v. City of
The Ninth Circuit added to a circuit split in holding that the
Third Circuit (Gil es v.
Procedure
Stockton, 60 F.4th 566
Supreme Court’s decision in Heck v. Humphrey does not preclude a
Davis, 427 F.3d 197 (3d
(9th Cir.), cert. denied,
42 U.S.C. § 1983 claim by a plaintiff who pleaded no contest to, but
Cir. 2005))
143 S. Ct. 2665 (2023)
was ultimately not convicted of, a crime. Heck held that § 1983 does
not permit claims that would necessarily require a plaintiff to prove
the unlawfulness of a conviction. The Ninth Circuit held that Heck
Fifth Circuit (DeLeon v.
did not bar a plaintiff’s § 1983 claims when the plaintiff pleaded no
City of Corpus Christi, 488
contest but completed the conditions of an agreement with
F.3d 649 (5th Cir. 2007))
prosecutors before the court entered an order finding him guilty of
the charge to which he pleaded. According to the Ninth Circuit,
Heck requires an actual judgment of conviction, not its functional
equivalent. The court declined to fol ow the Third Circuit’s decision
CRS-33

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
in Gilles v. Davis, which, according to the Ninth Circuit, appeared to
apply Heck to non-final criminal charges.
Criminal Law &
Ninth Circuit
United States v.
The Ninth Circuit vacated a defendant’s sentence for conspiracy to
First Circuit (United States
Procedure
Castil o, 69 F.4th 648
distribute methamphetamine where the district court had labeled
v. Lewis, 963 F.3d 16 (1st
(9th Cir. 2023)
conspiracy a “control ed substance offense” under § 4B1.2 of the
Cir. 2020), cert. denied, 141
U.S. Sentencing Guidelines (USSG). The court confronted the issue
S. Ct. 2826 (2021))
of whether to fol ow the text of § 4B1.2, which did not provide for

inchoate offenses, and the USSG commentary to § 4B1.2
(Application Note 1), which did. The court declined to defer to the
Second Circuit (United
Application Note 1, reasoning that § 4B1.2 unambiguously does not
States v. Richardson, 958
include inchoate offenses. The court relied on the Supreme Court’s
F.3d 151 (2d Cir. 2020))
decision in Kisor v. Wilkie, which held that courts may not defer to

agency interpretations of their own regulation if the court
Seventh Circuit (United
determines the regulation is not ambiguous. The Ninth Circuit joins
States v. Smith, 989 F.3d
most, but not all, circuit courts that have declined to defer to
575 (7th Cir. 2021))
Application Note 1 in the aftermath of Kisor.

Eighth Circuit (United
States v. Jefferson, 975 F.3d
700 (8th Cir. 2020), cert.
denied, 141 S. Ct. 2820
(2021))

Tenth Circuit (United
States v. Lovato, 950 F.3d
1337 (10th Cir. 2020), cert.
denied, 141 S. Ct. 2814
(2021))
Criminal Law &
Ninth Circuit
Pinson v. Carvajal, 69
The Ninth Circuit affirmed the dismissal of two habeas corpus
Third Circuit (Hope v.
Procedure
F.4th 1059 (9th Cir.
petitions challenging the petitioners’ conditions of confinement. The
Warden, 972 F.3d 310 (3d
2023), petition for cert.
court held that prisoners may not bring such claims under the
Cir. 2020))
filed, No. 23-488 (Nov.
federal habeas corpus statute, 28 U.S.C. § 2241. The court reasoned
8, 2023)
that, under Ninth Circuit precedent, challenges to the conditions of
a sentence’s execution, but not the conditions of the inmate’s
CRS-34

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
confinement, may be brought under § 2241. The court also
Sixth Circuit (Wilson v.
conducted a review of the history and purpose of habeas corpus
Wil iams, 961 F.3d 829 (6th
and concluded that conditions-of-confinement claims are not at the
Cir. 2020))
“core of habeas corpus.” The Ninth Circuit disagreed with multiple
other circuits that appear to have held that seeking release from
confinement is the necessary attribute of a claim’s sounding in
habeas. Instead, the Ninth Circuit held, the key inquiry is the
petitioner’s argument why release from confinement is legally
required to remedy a constitutional violation.
Criminal Law &
Ninth Circuit
Eldridge v. Howard, 70
A divided Ninth Circuit panel held that it had jurisdiction to review
Third Circuit (Wilson v.
Procedure
F.4th 543 (9th Cir.
a district court’s denial of the appellant’s habeas petition even
U.S. Parole Comm’n, 652
2023)
without a certificate of appealability (COA), where the petition
F.3d 348 (3d. Cir. 2011))
related to a sentence imposed by the D.C. Superior Court. Under

28 U.S.C. § 2253(c)(1), a COA must be obtained before a habeas
petitioner may appeal a federal district court’s denial of a petition
Seventh Circuit (Sanchez-
“in which the detention complained of arises out of process issued
Rengifo v. Caraway, 798
by a State court.” Splitting with other circuits, the panel majority
F.3d 532 (7th Cir. 2015))
held that requirement did not apply here, because the D.C.

Superior Court is not a “state court” under § 2253(c)(1). The
Tenth Circuit (Eldridge v.
majority then concluded that the district court erred in dismissing
Berkebile, 791 F.3d 1239
the petition on other grounds and remanded for the lower court to
(10th Cir. 2015))
consider the petition’s merits.

D.C. Circuit (Madley v. U.S.
Parole Comm’n, 278 F.3d 1
(D.C. Cir. 2002))
Criminal Law &
Ninth Circuit
United States v. Roper,
The Ninth Circuit held that district courts may consider non-
Sixth Circuit (United States
Procedure
72 F.4th 1097 (9th Cir.
retroactive changes in post-sentencing decisional law, or law made
v. McCall, 56 F.4th 1048
2023)
by judges, when considering whether a defendant has shown
(6th Cir. 2022) (en banc))
extraordinary and compelling reasons for a sentencing reduction

under 18 U.S.C. § 3582. The court found support in its prior
decision United States v. Chen, where it held that district courts may
Seventh Circuit (United
consider non-retroactive changes made by statutory sentencing law. States v. Brock, 39 F.4th
Here, the court held that the logic underpinning Chen also applied
462 (7th Cir. 2022))
to cases where the relevant change in sentencing law is decisional.

While some circuits have “kept the door open” to motions for
CRS-35

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
sentence reductions based on decisional law, the Ninth Circuit’s
Eighth Circuit (United
affirmative holding is in conflict with several circuits that rejected
States v. Crandall, 25 F.4th
such motions.
582 (8th Cir.), cert. denied,
142 S. Ct. 2781 (2022))

D.C. Circuit (United States
v. Jenkins, 50 F.4th 1185
(D.C. Cir. 2022))
Criminal Law &
Ninth Circuit
United States v. Scheu,
The Ninth Circuit issued a revised opinion, reaffirming its view that,
Fourth Circuit (United
Procedure
75 F.4th 1126 (9th
pursuant to the Supreme Court’s ruling in Kisor v. Wilkie, courts may States v. Moses, 23 F.4th
Cir.), opinion amended
defer to the U.S. Sentencing Commission’s official commentary
347 (4th Cir. 2022))
and superseded on denial interpreting the U.S. Sentencing Guidelines only if the court
of reh’g, 83 F.4th 1124
determines that the relevant Guideline is genuinely ambiguous and
(9th Cir. 2023)
the court has exhausted all traditional tools of construction. The
court acknowledged that the Sixth Circuit shares its view. In
contrast, the Fourth Circuit has taken the opposite approach,
holding that, under the Supreme Court’s ruling in Stinson v. United
States, the Commission’s official commentary is binding, unless it is
plainly erroneous, inconsistent with the Guideline provision itself, or
violates the Constitution. The Ninth Circuit reasoned that Kisor
effectively modified the cases on which Stinson was based, limiting
the scope of the deference announced in Stinson.
Criminal Law &
Ninth Circuit
United States v.
The Ninth Circuit reversed a former Member of Congress's
Second Circuit (United
Procedure
Fortenberry, 89 F.4th
criminal conviction under 18 U.S.C. § 1001(a)(2) for making false
States v. Coplan, 703 F.3d
702 (9th Cir. 2023)
statements to federal agents, deciding that the venue for his criminal 46 (2d Cir. 2012))
trial was improper. As part of an investigation into whether the

Member had received il egal campaign contributions from a foreign
national through conduit donors in Los Angeles, the Member was
Fourth Circuit (United
interviewed at his home in Nebraska and his lawyer's office in
States v. Oceanpro Indus.,
Washington, DC. The Member was charged under Section
Ltd., 674 F.3d 323 (4th Cir.
1001(a)(2) with making false statements to federal agents during
2012))
those interviews. Although the case was brought in the Central
District of California rather than either of the locations where the
allegedly false statements were made, the trial court held that the
venue was proper because the statements had an effect on a federal
CRS-36

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
investigation occurring within the district. The circuit court decided
that this effects-based test for venue was inconsistent with the text
of Section 1001(a)(2) and constitutionally invalid. The circuit panel's
reversal of the Member's conviction was without prejudice to a
possible retrial in a proper venue.
Criminal Law &
Tenth Circuit
Sumpter v. Kansas, 61
The Tenth Circuit, in reversing a district court’s grant of habeas
Seventh Circuit (Szabo v.
Procedure
F.4th 729 (10th Cir.
relief, held that a habeas petitioner seeking to cross-appeal from the Walls, 313 F.3d 392 (7th
2023)
portion of a district court’s order partially denying his habeas
Cir. 2002))
petition is required to obtain a certificate of appealability (COA)
from the district court. The statute establishing the prerequisites for
an appeal in a habeas proceeding, 28 U.S.C. § 2253(c), states that
“[u]nless a circuit justice or judge issues a certificate of appealability,
an appeal may not be taken to the court of appeals.” Recognizing
that all but one circuit court to address this question has applied the
COA requirement to claims arising from a prisoner’s cross-appeal,
the Tenth Circuit denied the COA and dismissed the cross-appeal
for lack of jurisdiction.
Criminal Law &
Tenth Circuit
United States v.
Adding to a circuit split, the Tenth Circuit held that, under 18
Third Circuit (United
Procedure
Booker, 63 F.4th 1254
U.S.C. § 3583(e), a sentencing court may not take into account
States v. Young, 634 F.3d
(10th Cir. 2023)
retributive considerations when modifying or revoking a term of
233 (3d Cir. 2011))
supervised release. The court observed that several other circuits

permit retributive considerations, at least so long as they are not
the main or predominant justification for the sentence modification. Fourth Circuit (United
States v. Webb, 738 F.3d
638 (4th Cir. 2013))

Fifth Circuit (United States
v. Sanchez, 900 F.3d 678
(5th Cir. 2018))

Seventh Circuit (United
States v. Phil ips, 791 F.3d
698 (7th Cir. 2015))
CRS-37

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue

Ninth Circuit (United
States v. Simtob, 485 F.3d
1058 (9th Cir. 2007))
Criminal Law &
Tenth Circuit
United States v. Maloid, The Tenth Circuit widened a circuit split by holding that
Third Circuit (United
Procedure
71 F.4th 795 (10th Cir.
commentary from the U.S. Sentencing Commission is generally
States v. Nasir, 17 F.4th
2023), cert. denied, No.
entitled to deference even after the Supreme Court’s decision in
459 (3d Cir. 2021) (en
23-6150 (U.S. Mar. 4,
Kisor v. Wilkie. In Kisor, the Supreme Court held that courts may not
banc))
2024)
defer to agency interpretations of their own regulation if the court

determines the regulation is not ambiguous. The circuit courts have
split on whether Kisor abrogated an earlier Supreme Court decision
Sixth Circuit (United States
providing for broad deference to the Sentencing Commission’s
v. Riccardi, 989 F.3d 476
commentary. The Tenth Circuit declined to extend Kisor and reduce (6th Cir. 2021))
deference to the Sentencing Commission absent clear direction

from the Supreme Court. The Tenth Circuit thus affirmed the
Ninth Circuit (United
defendant’s sentence based in part on Sentencing Commission
States v. Castil o, 69 F.4th
commentary providing that conspiracies to commit crimes of
648 (9th Cir. 2023))
violence count as crimes of violence for sentencing purposes.

Eleventh Circuit (United
States v. Dupree, 57 F.4th
1269 (11th Cir. 2023) (en
banc))
Criminal Law &
Eleventh Circuit
United States v. Ware,
The Eleventh Circuit affirmed the convictions and sentencing of a
Third Circuit (United
Procedure
69 F.4th 830 (11th Cir.
defendant convicted of Hobbs Act robbery and associated firearms
States v. Bell, 947 F.3d 49
2023), petition for cert.
offenses for his involvement in the robbery of nine businesses. As to (3d Cir. 2020))
filed, No. 23-5946 (Nov. sentencing, the court affirmed a sentencing enhancement based on
2, 2023)
bodily restraint for three of the nine robberies. The court declined
to fol ow a Third Circuit decision that would have counseled against
applying the enhancement because that case directly conflicted with
Eleventh Circuit precedent.
CRS-38

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Criminal Law &
Eleventh Circuit
United States v.
The Eleventh Circuit held that a defendant imprisoned for violating
Seventh Circuit (United
Procedure
Gonzalez, 71 F.4th 881
conditions of supervised release is eligible for a sentence reduction
States v. Corner, 967 F.3d
(11th Cir. 2023), cert.
under the First Step Act of 2018 when the underlying crime for
662 (7th Cir. 2020))
denied, 144 S. Ct. 552
which supervised release was imposed qualifies for a reduction
(2024)
under the Act. The court further held that the district court did not
abuse its discretion in denying a sentence reduction without first
calculating the new sentencing guidelines range. The Eleventh
Circuit added that, in some instances, determining the new
guidelines range may be the “better practice,” but the court
declined to adopt the Seventh Circuit’s categorical approach that a
district court must always first recalculate the guidelines range
before considering whether a sentence reduction is appropriate
under the First Step Act.
Criminal Law &
Eleventh Circuit
United States v. Talley,
The Eleventh Circuit joined a circuit split as to whether a federal
Second Circuit (United
Procedure
83 F.4th 1296 (11th
criminal defendant sentenced under 18 U.S.C. § 3853 to a period of
States v. Barinas, 865 F.3d
Cir. 2023)
supervised release fol owing imprisonment may have the supervised
99 (2d Cir. 2017))
release period tolled if he absconds. The court decided that neither

the text of § 3853 nor circuit caselaw supported applying the
judicially crafted “fugitive tol ing doctrine” to those who violate the
Third Circuit (United
conditions of their supervision and abscond. The Eleventh Circuit
States v. Island, 916 F.3d
joins the First Circuit in this view, while the Second, Third, Fourth,
249 (3d Cir. 2019))
and Ninth Circuits apply the fugitive tol ing doctrine to terms of

supervised release.
Fourth Circuit (United
States v. Buchanan, 638
F.3d 448 (4th Cir. 2011))

Ninth Circuit (United
States v. Murguia-Oliveros,
421 F.3d 951 (9th Cir.
2005))
CRS-39

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Criminal Law &
Eleventh Circuit
United States v. Pate,
A divided, en banc Eleventh Circuit held that a former civil servant
Fifth Circuit (United States
Procedure
84 F.4th 1196 (11th
is not an “officer or employee of the United States” under 18 U.S.C. v. Raymer, 876 F.2d 383
Cir. 2023) (en banc)
§ 1114 and § 1521, splitting with the Fifth Circuit. Section 1521
(5th Cir. 1989))
makes it a crime to file a retaliatory false lien against the property of
an “individual described in” § 1114, which criminalizes the kil ing of
“any officer or employee of the United States” “engaged in” or “on
account of” their performance of official duties. The defendant in
the case had been convicted of filing false liens against the property
of former civil servants in retaliation for a tax dispute. Focusing on
the statutory text, context, and structure, the court rejected the
government’s argument that §§ 1114 and 1521 cover former federal
officers and employees so long as the defendant retaliated against
the victims “on account of” their prior performance of official
actions.
Education
Fourth Circuit
Sanchez v. Arlington
The Fourth Circuit added to a circuit split in holding that, in a
Ninth Circuit (Meridian
Cnty. Sch. Bd., 58 F.4th
standalone complaint for attorney’s fees under the Individuals with
Joint Sch. Dist. No. 2 v.
130 (4th Cir. 2023)
Disabilities Education Act (IDEA), the court wil apply the statute of
D.A., 792 F.3d 1054 (9th
limitations from the state statute implementing the IDEA. The court Cir. 2015))
explained that the IDEA does not contain an express statute of

limitations for attorney’s fees actions and that, when a federal
statute omits a limitations period, federal courts “borrow” the
Eleventh Circuit (Zipperer
statute of limitations from the most analogous state law claim. The
By & Through Zipperer v.
Fourth Circuit deemed the shorter limitations period from the state Sch. Bd. of Seminole Cty.,
IDEA analogue more appropriate, as plaintiffs in an IDEA action
Fla., 111 F.3d 847 (11th
already have retained counsel, an administrative decision has been
Cir. 1997))
issued, and federal policy supports the quick resolution of IDEA
matters. The court disagreed with the Ninth and Eleventh Circuits,
which apply the statute of limitations from state statutes governing
general civil actions, rather than looking to IDEA-implementing
statutes specifically.
CRS-40

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Election Law
Fifth Circuit
Vote.org v. Cal anen, 89 A divided Fifth Circuit reversed the lower court and upheld a Texas Sixth Circuit (McKay v.
F.4th 459 (5th Cir.
law requiring an original signature on a voter registration form.
Thompson, 226 F.3d 752
2023)
Before reaching the merits, the court held that the plaintiffs had
(6th Cir. 2000))
standing to bring suit, joining the Third and Eleventh Circuits and
splitting with the Sixth Circuit in deciding that private parties could
file suit under 42 U.S.C. § 1983 to enforce the “materiality
provision” of the Civil Rights Act of 1964. That provision provides
that the right to vote shall not be denied because of an immaterial
error or omission in a voter registration form or other voting
records. On the merits, circuit panel majority held that given the
totality of the circumstances, the requirement was a material voting
qualification permitted under the Civil Rights Act. The majority also
rejected the plaintiffs’ First Amendment claim, deciding that the
state’s interests in ensuring voting integrity outweighed the minimal
burden that the signature requirement placed on persons’ electoral
participation.
Employee
Second Circuit
Cunningham v. Cornell
The Second Circuit held that, to state a claim under 29 U.S.C.
Eighth Circuit (Braden v.
Benefits
Univ., 86 F.4th 961 (2d
§ 1106(a)(1)(C) alleging a prohibited transaction in violation of the
Wal-Mart Stores, Inc., 588
Cir. 2023), cert. petition
Employee Retirement Income Security Act of 1974 (ERISA), a
F.3d 585 (8th Cir. 2009))

filed, No. 23-1007 (U.S.
complaint must allege that a plan fiduciary caused an employee
Mar. 13, 2024)
benefit plan to compensate a service provider for unnecessary
services or to pay unreasonable compensation. The court observed
disagreement among the circuits on when a prohibited transaction
claim may be raised under § 1106(a)(1)(C), but only expressly
disagreed with the approach taken by the Eighth Circuit, which
holds that a prohibited transaction claim under § 1106(a)(1)(C) may
be stated by alleging merely that the plan paid compensation for
services. The Second Circuit reasoned that requiring a complaint to
allege that compensation was unnecessary or unreasonable would
limit plan mismanagement claims under § 1106(a)(1)(C) to the
offensive conduct the statute discourages, and avoid encompassing
the vast array of routine transactions that are not prohibited.
CRS-41

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
False Claims
Sixth Circuit
United States ex rel.
The Sixth Circuit upheld the dismissal of a case brought under the
Third Circuit (United
Act
Martin v. Hathaway, 63
False Claims Act and the Anti-Kickback Statute by interpreting
States ex rel. Greenfield v.
F.4th 1043 (6th Cir.),
“remuneration” in the latter statute to include only payments or
Medco Health Sols., Inc.,
cert. denied, 144 S. Ct.
other transfers of value, rather than including any act that may
880 F.3d 89 (3d Cir. 2018))
224 (2023)
benefit the recipient. The court also held that a plaintiff must show
but-for causation between a kickback scheme and the false claim
presented—that is, that the service for which the defendant sought
government reimbursement would not have occurred but for the
kickback scheme. The court joined a circuit split on the causation
issue, with the Eighth Circuit requiring but-for causation and the
Third Circuit requiring only that the claim at issue covered items or
services that involved il egal kickbacks.
Financial
Third Circuit
Jaludi v. Citigroup, 57
The Third Circuit held that two provisions of the Sarbanes-Oxley
Second Circuit (Daly v.
Regulation
F.4th 148 (3d Cir.
Act—its statute of limitations and its exhaustion requirement—are
Citigroup Inc., 939 F.3d 415
2023)
procedural and not jurisdictional. The Third Circuit explained that
(2d Cir. 2019))
courts have discretion to excuse violations of procedural provisions
and that such violations wil not automatically result in dismissal.
The court rejected the Second Circuit’s 2019 contrary
interpretation of the exhaustion requirement but stated that the
Second Circuit’s approach is outdated in light of subsequent
Supreme Court caselaw. The Third Circuit concluded that dismissal
here was nonetheless appropriate because the administrative
complaint was filed years after the 180-day deadline and amending
the complaint would have been futile.
Federal Courts
Third Circuit
Prater v. Dep’t of
The Third Circuit created a circuit split as to the scope of a
Sixth Circuit (Woods v.
Corr., 76 F.4th 184 (3d
magistrate judge’s jurisdiction under the Federal Magistrates Act, 28
Dahlberg, 894 F.2d 187
Cir. 2023)
U.S.C. § 636. Disagreeing with the Sixth and Tenth Circuits, the
(6th Cir. 1990))
court held that magistrate judges maintain jurisdiction to deny

motions to proceed in forma pauperis (IFP) because such denials are
non-dispositive pre-trial matters. The court reasoned that IFP
Tenth Circuit (Lister v.
motions do not appear on the § 636(b) list of matters that the
Dep’t of Treasury, 408 F.3d
statute carves out of magistrate judge jurisdiction. Acknowledging
1309 (10th Cir. 2005))
that § 636(b) is an il ustrative list, not an exhaustive one, the court
also looked to § 636(b)(1)(A) and (B), which allow magistrate judges
to hear prisoner petitions challenging the conditions of their
CRS-42

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
confinement and to rule on IFP motions that accompany those
petitions. The court also found support in Federal Rule of Civil
Procedure 72(b), which carves out “dispositive” matters from a
magistrate judge’s jurisdiction.
Firearms
First Circuit
United States v. Pérez-
The First Circuit vacated a criminal defendant’s conviction under 18
Eleventh Circuit (United
Greaux, 83 F.4th 1 (1st
U.S.C. § 924(c)(1)(B)(i ) for possessing a machine gun in furtherance
States v. Haile, 685 F.3d
Cir. 2023)
of a drug trafficking crime and remanded the case for retrial on that
1211 (11th Cir. 2012))
count, after concluding jury instructions improperly conveyed that

the defendant need not have known the firearm was a machine gun.
Splitting from other circuits, the court ruled that the government
D.C. Circuit (United States
must prove the defendant had knowledge that the firearm had the
v. Burwell, 642 F.3d 1062
characteristics of a machine gun as a necessary element of the
(D.C. Cir. 2011), reh’g en
offense.
banc granted, judgment
vacated (Oct. 12, 2011),
opinion reinstated and aff’d,
690 F.3d 500 (D.C. Cir.
2012))
Firearms
Fifth Circuit
Cargil v. Garland, 57
Sitting en banc, a divided Fifth Circuit held that a nonmechanical
Tenth Circuit (Aposhian v.
F.4th 447 (5th Cir.) (en
bump stock is not a machinegun within the meaning of 18 U.S.C.
Barr, 958 F.3d 969 (10th
banc), cert. granted, 144
§ 921(a)(24). In a 2018 final rule, the Bureau of Alcohol, Tobacco,
Cir. 2020))
S. Ct. 374 (2023)
Firearms, and Explosives classified bump stocks, an accessory that

attaches to a semiautomatic weapon to increase the rate of fire, as
machineguns for purposes of the National Firearms Act and the
D.C. Circuit (Guedes v.
federal statutory ban on the possession or transfer of new
ATF, 920 F.3d 1 (D.C. Cir.
machineguns. Of the 16 members of the court, 13 agreed that an
2019))
act of Congress is required to prohibit bump stocks. A 12-member
majority of the court agreed that even if the current statutory
language were ambiguous, the rule of lenity would require the court
to interpret the law against imposing criminal liability. (Eight of the
sixteen members of the court viewed the regulation as contrary to
the plain meaning of the statutory definition of machinegun, and
therefore in violation of the Administrative Procedure Act, because
a bump stock does not fire a weapon automatically and by a single
function of the trigger.) The court reversed the judgment of the
district court and remanded with instructions to enter judgment
against the government and determine the appropriate remedy.
CRS-43

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Firearms
Sixth Circuit
Hardin v. Garland, 65
Adding to a circuit split, a Sixth Circuit panel held that the Bureau
Tenth Circuit (Aposhian v.
F.4th 895 (6th Cir.
of Alcohol, Tobacco, Firearms, and Explosives (ATF) lacked
Barr, 958 F.3d 969 (10th
2023), petition for cert.
statutory authority to promulgate a 2018 rule classifying bump-stock Cir. 2020))
filed, No. 23-62 (U.S.
type devices—defined by the ATF as devices that automatically

July 21, 2023)
shoot more than one shot by a single function of the trigger—as a
“machinegun.” The designation rendered bump-stock possession a
D.C. Circuit (Guedes v.
criminal offense under the Gun Control Act of 1968, which bars
Bureau of Alcohol,
persons from possessing a machinegun. The court determined that
Tobacco, Firearms and
the agency’s definition of a “machinegun” as applied to bump stocks
Explosives, 920 F.3d 1
is ambiguous, declined to defer to the ATF’s definition, and
(D.C. Cir. 2019) (per
concluded that the rule of lenity applicable to criminal offenses
curiam))
required the court to interpret the term narrowly.
Firearms
Eighth Circuit
United States v.
The Eighth Circuit upheld the constitutionality of 18 U.S.C.
Seventh Circuit (United
Sitladeen, 64 F.4th 978
§ 922(g)(5)(A), which provides that any alien unlawful y present in
States v. Meza-Rodriguez,
(8th Cir. 2023)
the United States is prohibited from possessing a firearm. The
798 F.3d 664 (7th Cir.
appellant argued that § 922(g)(5)(A) violates the Second
2015))
Amendment, among other things. The court disagreed, holding that
under circuit precedent, il egally present aliens are not part of “the
people” covered by the Second Amendment. The Eighth Circuit’s
decision places it in tension with the Seventh Circuit, which has held
that at least some unlawful y present aliens can be considered part
of “the people” protected by the Second Amendment.
Health
Second Circuit
MSP Recovery Claims,
The Second Circuit held that a Medicare Advantage (MA) plan’s
Eleventh Circuit (MSP
Series LLC v. Hereford
report under § 111 of the Medicare Secondary Payer Act (the Act)
Recovery Claims, Series
Ins. Co., 66 F.4th 77 (2d did not amount to an admission of liability by the plan. Section 111
LLC v. ACE American
Cir. 2023)
requires that MA plans report to the Centers for Medicare and
Insurance Co., 974 F.3d
Medicaid Services (CMS) certain claims they receive so that CMS
1305 (11th Cir. 2020))
may make an appropriate determination concerning the
coordination of benefits. The court relied on the “not ambiguous”
text of § 111 to hold that a report signifies only a plan’s
determination that a claimant is entitled to benefits under the Act,
not a determination as to which entity must pay those benefits. The
court disagreed with an Eleventh Circuit opinion that interpreted a
§ 111 report as demonstrating a plan’s knowledge that it owed
payments under the Act.
CRS-44

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Health
Fifth Circuit
Gonzalez v. Blue Cross
The Fifth Circuit held that a federal employee failed to state a claim
Tenth Circuit (Bryan v. Off.
Blue Shield Ass’n, 62
against OPM for denying health insurance benefits for a treatment
of Pers. Mgmt., 165 F.3d
F.4th 891 (5th Cir.),
that she was no longer seeking. Under the Federal Employees
1315 (10th Cir. 1999))
cert. denied, 144 S. Ct.
Health Benefits Act (FEHBA), OPM is responsible for regulating

99 (2023)
health insurance plans for federal employees. In this case, an
insurance company, on behalf of OPM, made an “advance benefit
determination” denying coverage for a certain cancer treatment; the
employee therefore chose a different, covered treatment that
eliminated her cancer but allegedly caused severe side effects.
Breaking with the Tenth Circuit, the court held that the employee’s
claim against OPM was not barred by sovereign immunity, reasoning
that OPM regulations could not narrow 5 U.S.C. § 8912, which
waives federal sovereign immunity for “a civil action or claim . .
founded on [FEHBA].” The court nevertheless found that the
employee could not state a valid claim for benefits under OPM’s
regulations, which it held allow relief only to the extent an
employee seeks coverage for medical bil s that she actually did or
could yet incur.
Health
Sixth Circuit
Wil iams ex rel. L.W. v.
The Sixth Circuit granted an emergency stay of a lower court’s
Fourth Circuit (Grimm v.
Skrmetti, 73 F.4th 408
preliminary injunction against a Tennessee law restricting certain
Gloucester Cnty. Sch. Bd.,
(6th Cir. 2023), petition
medical treatments, including hormone therapy and puberty
972 F.3d 586 (4th Cir.
for cert. filed, No. 23-
blockers, for transgender minors. The circuit panel ruled that
2020))
477 (U.S. Nov. 6, 2023) Tennessee was likely to prevail in its appeal of the injunction, and

the panel expedited review of that appeal. At this stage, the panel
held that the state-wide injunction was likely overbroad and
Eighth Circuit (Brandt ex
unnecessary to remedy the plaintiffs’ alleged injuries. On the merits,
rel. Brandt v. Rutledge, 47
the panel held that the plaintiffs were unlikely to succeed in their
F.4th 661, 670 (8th Cir.
arguments that the law violated parents’ constitutional due process
2022))
right to control their children’s medical care. The court also held
that plaintiffs were unlikely to show that the law violated
constitutional equal protection principles, and the panel expressed
disagreement with other circuits that have applied heightened
constitutional scrutiny to transgender-based classifications.
CRS-45

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Immigration
First Circuit
Bazile v. Garland, 76
The First Circuit held that judicial venue for appellate review of a
Fourth Circuit (Herrera-
F.4th 5 (1st Cir. 2023)
final order of removal is determined by the location of the
Alcala v. Garland, 39 F.4th
administrative venue in which removal proceedings are commenced, 2 33 (4th Cir. 2022))
absent any formal change in administrative venue. Under 8 U.S.C.
§ 1252(b)(2), a petition for review of a final order of removal must
be filed with the court of appeals for the circuit within which “the
immigration judge completed the proceedings.” Removal
proceedings commence with a filing with an administrative control
immigration court, but may include a separate designated hearing
location and remote hearings with participants in various locations.
The First Circuit held that appellate review of the order of removal
was appropriately filed with the First Circuit, as opposed to the Fifth
Circuit, because the proceedings were initiated in the Boston
immigration court, even though the Immigration Judge was
physically present in Fort Worth, TX. Acknowledging that other
circuits have reached a variety of conflicting results, the First Circuit
held that an immigration judge completes the removal proceedings
at the administrative venue of the proceedings.
Immigration
Second Circuit
Garcia v. Garland, 64
Contributing to a circuit split, the Second Circuit joined the Sixth
Third Circuit (Arcos
F.4th 62 (2d Cir. 2023)
Circuit in holding, among other things, that the Department of
Sanchez v. Attorney
Justice’s (DOJ’s) regulations regarding whether an immigration judge General, 997 F.3d 113 (3d
may “administratively close” a case are ambiguous. The court
Cir. 2021))
observed that the Third, Fourth, and Seventh Circuits have

concluded that DOJ’s regulations unambiguously authorize such
administrative closure decisions. The Second Circuit disagreed,
Fourth Circuit (Romero v.
finding that the regulations did not provide general authority for
Barr, 937 F.3d 282 (4th Cir.
administrative closure. The court held that the former Attorney
2019))
General’s then-control ing interpretation of the regulations—that

they do not authorize administrative closure except in limited
Seventh Circuit (Meza
circumstances—was reasonable and therefore entitled to judicial
Morales v. Barr, 973 F.3d
deference.
656 (7th Cir. 2020))
CRS-46

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Immigration
Second Circuit
Ud Din v. Garland, 72
The Second Circuit added to a circuit split as to whether an
Third Circuit (Luciana v.
F.4th 411 (2d Cir.
immigration judge may deny adjustment of status to an applicant
Att’y Gen., 502 F.3d 273
2023)
who had filed a frivolous, but untimely, asylum application.
(3d Cir. 2007))
Generally, a person who knowingly files an asylum application
containing false, material statements is considered to have filed a
frivolous application and is permanently barred from immigration
benefits. The court disagreed with the Third Circuit and held that
an asylum application can be found frivolous even if it was untimely
filed. The court explained that the federal statute on frivolous
asylum applications contains no clear statement that the asylum
application filing deadline is jurisdictional, thus requiring immigration
judges to consider an application’s timeliness before analyzing for
frivolousness. The court determined that the filing of an asylum
application, timely or otherwise, is the only precondition to
triggering a frivolousness inquiry.
Immigration
Third Circuit
Madrid-Mancia v. Att’y
The Third Circuit held that an alien may not be removed in absentia Sixth Circuit (Santos-
Gen., 72 F.4th 508 (3d
if the original notice to appear (NTA) for removal proceedings
Santos v. Barr, 917 F.3d
Cir. 2023)
lacked the date and time of the proceedings as required under 8
486 (6th Cir. 2019))
U.S.C. § 1229(a)(1), even if a supplemental notice issued pursuant to
§1229(a)(2) later supplied the missing information. The circuit panel
cited the Supreme Court’s decision in Pereira v. Sessions, which held
Eleventh Circuit
that the issuance of an NTA that lacked the date and time of an
(Dacostagomez-Aguilar v.
alien’s removal proceedings was not an NTA under § 1229(a)(1),
Att’y Gen., 40 F.4th 1312
and therefore did not cut off the required period of continuous
(11th Cir. 2022))
presence for cancellation of removal. The Third Circuit determined
that, as in Pereira, the government’s two-step process of supplying
only some information in an NTA and providing a supplemental
notice with the date and time later did not comport with the
requirements of either § 1229(a)(1) or § 1229(a)(2). The decision
widens a circuit split on whether § 1229(a)(2) provides a basis for
this two-step process.
CRS-47

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Immigration
Fourth Circuit
Lazo-Gavidia v.
A divided Fourth Circuit held that an alien may move to rescind a
Fifth Circuit (Gudiel-
Garland, 73 F.4th 244
removal order issued in absentia if the original notice to appear
Vil atoro v. Garland, 40
(4th Cir. 2023), petition
(NTA) for removal proceedings lacked the date and time of the
F.4th 247 (5th Cir. 2022))
for cert. filed, No. 23-
proceedings required under 8 U.S.C. § 1229(a)(1), even if a

628 (U.S. Dec. 11,
supplemental notice ultimately supplied the missing information. The
2023)
majority also disagreed with circuits that have held that the
Eleventh Circuit
government’s failure to include the time and place of a removal
(Dacostagomez-Aguilar v.
hearing in an NTA is remedied if the alien later fails to update the
U.S. Att’y Gen., 40 F.4th
Department of Homeland Security on a change of address. The
1312 (11th Cir. 2022))
Supreme Court granted certiorari in June 2023 in another case to
consider this issue.
Immigration
Fourth Circuit
Cela v. Garland, 75
A divided Fourth Circuit panel held that an alien whose asylum
Fifth Circuit (Siwe v.
F.4th 355 (4th Cir.
status was terminated fol owing criminal convictions was ineligible
Holder, 742 F.3d 603 (5th
2023), petition for cert.
to apply for adjustment of status to lawful permanent resident
Cir. 2014))
filed, No. 23-686 (U.S.
under 8 U.S.C. § 1159(b). The court interpreted § 1159(b), which
Dec. 27, 2023)
permits aliens granted asylum to seek adjustment of status, as
requiring the alien to have a cognizable “status” to “adjust.” The
panel interpreted “status” as referring to an alien’s current or
present condition. The court rejected the petitioner’s argument that
prior status was sufficient for purposes of § 1159(b) because it does
not contain a “non-termination” requirement. The panel disagreed
with a Fifth Circuit decision that held an alien need not maintain
their asylum status to apply for adjustment of status.
Immigration
Fourth Circuit
Solis-Flores v. Garland,
The Fourth Circuit affirmed the Board of Immigration Appeals’
Ninth Circuit (Castil o-
82 F.4th 264 (4th Cir.
(BIA’s) decision that a conviction for receipt of stolen property is a
Cruz v. Holder, 581 F.3d
2023), petition for cert.
crime of moral turpitude if knowledge that the goods were stolen is
1154 (9th Cir. 2009))
filed, No. 23-913 (U.S.
an element of the offense. On that basis, the court held that the
Feb. 22, 2024)
conviction rendered the petitioner ineligible for cancellation of
removal under 8 U.S.C. §§ 1229b(b)(1)(C) and 1227(a)(2)(A)(i). The
Second, Third, Fifth, Seventh, Eighth, Tenth, and Eleventh Circuits
have come to the same conclusion as the Fourth Circuit on this
point. In contrast, the Ninth Circuit has held the receipt of stolen
property is a crime of moral turpitude only if it requires proof of
intent to permanently deprive the owner of the property. The
Fourth Circuit also held that the BIA erred by declining to remand
CRS-48

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
the case for a new grant of voluntary departure. The court
explained that 8 C.F.R. § 1240.26(c)(3)(i) unequivocally requires an
Immigration Judge to inform an alien of a bond amount and the
deadline for posting the bond before granting voluntary departure,
which the judge had not done here.
Immigration
Fourth Circuit
Martinez v. Garland, 86
The Fourth Circuit issued the latest ruling in a growing circuit split
Sixth Circuit (Kolov v.
F.4th 561 (4th Cir.
over when an alien subject to a reinstated removal order may seek
Garland, 78 F.4th 911 (6th
2023)
judicial review of a later administrative denial of that alien’s eligibility Cir. 2023))
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 Second Circuit,
Ninth Circuit (Alonso-
but disagreeing with the Sixth, Ninth, and Tenth Circuits, a majority
Juarez v. Garland, 80 F.4th
of the Fourth Circuit panel held that the 30-day clock is tied to the
1039 (9th Cir. 2023))
earlier reinstatement of removal order, not the later relief

proceedings.
Tenth Circuit (Arostegui-
Maldonado v. Garland, 75
F.4th 1132 (10th Cir.
2023))
Immigration
Sixth Circuit
Kolov v. Garland, 78
In rejecting an alien’s challenge to a Board of Immigration Appeals
Second Circuit (Bhaktibhai-
F.4th 911 (6th Cir.
(BIA) decision, the Sixth Circuit acknowledged a growing circuit
Patel v. Garland, 32 F.4th
2023)
split over when an alien subject to a reinstated removal order may
180 (2d Cir. 2022))
seek judicial review of the BIA’s subsequent denial of the alien’s

petition for withholding of removal. The Immigration and
Nationality Act permits an alien to appeal to a U.S. circuit court for

review of a “final” order of removal within 30 days of the order.
The question before the court was whether the 30-day clock for
the petitioner, who sought to challenge the BIA’s denial of his claim
for withholding of removal, was linked to the completion of those
proceedings or to the earlier reinstatement of the alien’s removal
order. Relying on circuit precedent, the Sixth Circuit held that the
30-day clock was tied to the completion of the withholding-of-
removal proceedings, and therefore found it had jurisdiction to
review the petitioner’s claim. Stil , the court upheld the BIA’s
determination that the petitioner did not present a credible claim
for relief.
CRS-49

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
Immigration
Sixth Circuit
United States v. Zheng,
The Sixth Circuit joined the Third, Fifth, and Eighth Circuits in
Second Circuit (United
87 F.4th 336 (6th Cir.
holding that “harboring” aliens in violation of 8 U.S.C.
States v. Vargas-Cordon,
2023), petition for cert.
§ 1324(a)(1)(A)(i i) encompasses conduct that tends to substantially
733 F.3d 366 (2d Cir.
filed, No. 23-928 (U.S.
facilitate those persons remaining in the country il egally and
2013))
Feb. 27, 2024)
prevent authorities from detecting their presence. The control ing

opinion characterized the court’s approach as differing from that
taken by the Second, Seventh, and Ninth Circuits, which have held
Seventh Circuit (United
that a defendant must act intentionally or purposeful y for liability to States v. McClellan, 794
attach, and the Eleventh Circuit, which requires a “knowing” mens
F.3d 743 (7th Cir. 2015))
rea.

Ninth Circuit (United
States v. You, 382 F.3d 958
(9th Cir. 2004))

Eleventh Circuit (United
States v. Dominguez, 661
F.3d 1051 (11th Cir. 2011)
Immigration
Ninth Circuit
Alonso-Juarez v.
The Ninth Circuit considered when an alien subject to a reinstated
Second Circuit (Bhaktibhai-
Garland, 80 F.4th 1039
removal order may seek judicial review of a later administrative
Patel v. Garland, 32 F.4th
(9th Cir. 2023)
denial of that alien’s eligibility to pursue withholding of removal.
180 (2d Cir. 2022))
Under 8 U.S.C. § 1252(b)(1), a “final” order of removal may be
appealed to a U.S. circuit court not later than 30 days of the date of
the order. Acknowledging a circuit split on this question, the Ninth
Circuit held that the 30-day clock was triggered by the completion
of the later relief proceedings and not the earlier reinstatement of
the removal order.
Immigration
Tenth Circuit
Velazquez v. Garland,
The Tenth Circuit held that an alien who is ordered removable has
Ninth Circuit (Meza-
88 F.4th 1301 (10th
60 days from that order during which the alien may be permitted to
Vallejos v. Holder, 669 F.3d
Cir. 2023), petition for
voluntarily depart the United States or file an administrative motion
920 (9th Cir. 2012))
cert. filed, No. 23-929
to reopen the proceedings. 8 U.S.C. § 1229c(b)(2) provides that an
(U.S. Feb. 27, 2024)
immigration judge may issue an order granting the alien the ability to
voluntarily depart the country instead of ordering removal and that
the voluntary departure period may last up to 60 days. The Tenth
Circuit held that this period may not exceed 60 calendar days from
the date of service of the voluntary departure order. The court
CRS-50

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
expressed its disagreement with the Ninth Circuit, which the Tenth
Circuit panel described as holding that a voluntary departure period
extended to the next business day when the 60th day falls on a
federal holiday or weekend.
Immigration
Eleventh Circuit
Bouarfa v. Sec’y, Dep’t
The Eleventh Circuit held that a district court lacked subject-matter Sixth Circuit (Jomaa v.
of Homeland Sec., 75
jurisdiction to hear a complaint about the revocation of approval for United States, 940 F.3d 291
F.4th 1157 (11th Cir.
a visa petition. The court applied 8 U.S.C. § 1252’s bar on judicial
(6th Cir. 2019))
2023), petition for cert.
review of certain discretionary immigration decisions to the

filed, No. 23-583 (Nov.
decision to revoke approval of a visa petition under 8 U.S.C. § 1155.
30, 2023)
The court added to the majority position in a circuit split by holding Ninth Circuit (ANA Int’l
that a revocation of a visa petition is one such discretionary
Inc. v. Way, 393 F.3d 886
decision.
(9th Cir. 2004))
Intellectual
Fourth Circuit
Prudential Ins. Co. v.
The Fourth Circuit affirmed a district court ruling that Shenzhen
Ninth Circuit (GoPets Ltd.
Property
Shenzhen Stone
Stone, a Chinese internet company, violated the Anticybersquatting
v. Hise, 657 F.3d 1024 (9th
Network Info. Ltd., 58
Consumer Protection Act (ACPA) by registering a domain name,
Cir. 2011))
F.4th 785 (4th Cir.
PRU.COM, identical to Prudential’s distinctive mark. Under the
2023)
ACPA, an entity that “registers” a domain identical or confusingly
similar to a distinctive trademark with a “bad faith intent to profit”
is liable to the owner of the trademark. The Fourth Circuit
determined that Shenzhen Stone was not entitled to the benefit of
the ACPA’s safe harbor provision, as it could not have had a
“reasonable belief” that its use of the domain name was lawful.
Although Shenzhen Stone was not the initial registrant of the
domain name at issue, the Fourth Circuit employed reasoning
endorsed by the Third and Eleventh Circuits—but not the Ninth
Circuit—in holding that the term “registration” applies not only to
the initial registration of the mark but also to subsequent re-
registrations.
International
First Circuit
United States v. Dávila-
A divided First Circuit, sitting en banc, affirmed two foreign
Fifth Circuit (United States
Law
Reyes, 84 F.4th 400 (1st nationals’ convictions—obtained through unconditional plea
v. Bustos-Useche, 273 F.3d
Cir. 2023) (en banc),
agreements—under the Maritime Drug Law Enforcement Act
622 (5th Cir. 2001))
petition for cert. filed,
(MDLEA) for trafficking drugs on the high seas using a stateless

No. 23-6910 (Mar. 6,
vessel. A three-judge panel of the First Circuit had previously held
2024)
that the MDLEA’s application to “vessels without nationality”
exceeded Congress’s constitutional authority because the provision
CRS-51

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
covered some foreign vessels not considered stateless under
Eleventh Circuit (United
international law. The en banc court vacated the panel’s decision
States v. Tinoco, 304 F.3d
and affirmed the defendants’ convictions on narrower, non-
1088 (11th Cir. 2002))
constitutional, record-based grounds. In reaching its holding, the en

banc court rejected the defendants’ argument that the MDLEA’s
stated application to vessels “subject to the jurisdiction of the
D.C. Circuit (United States
United States” limits the subject-matter jurisdiction of federal
v. Miranda, 780 F.3d 1185
courts under Article III of the Constitution. The court held instead
(D.C. Cir. 2015))
that this language limits only the substantive reach of the MDLEA. In
so holding, the First Circuit deepened a split among the federal
courts of appeals on this interpretive question.
Labor &
Sixth Circuit
Clark v. A&L Homecare The Sixth Circuit announced a rule on when a district court should
Fifth Circuit (Swales v.
Employment
& Training Ctr., 68
facilitate notice to “similarly situated” current and former workers
KLLM Transport Services,
F.4th 1003 (6th Cir.
that might allow them to join a plaintiff’s suit for unpaid wages
L.L.C., 985 F.3d 430 (5th
2023)
under the Fair Labor Standards Act. The circuit court held that for a Cir. 2021))
district court to facilitate notice, the plaintiff must show a strong
likelihood that those employees are similarly situated. The court
characterized this standard as more stringent than the standard
adopted by many district courts, under which the plaintiff must first
make only a modest factual showing that the employees are similarly
situated. The panel also described the announced standard as less
stringent than the standard endorsed by the Fifth Circuit, which
requires a showing by a preponderance of evidence that others are
similarly situated.
Labor &
Sixth Circuit
Milman v. Fieger &
The Sixth Circuit reversed a district court’s dismissal of a plaintiff’s
Eighth Circuit (Lovland v.
Employment
Fieger, P.C., 58 F.4th
claim for retaliation under the Family and Medical Leave Act
Emp’rs Mut. Cas. Co., 674
860 (6th Cir. 2023)
(FMLA). The plaintiff alleged that her employer fired her after she
F.3d 806 (8th Cir. 2012))
made a request for FMLA leave, but did not allege that she was

entitled to or took the requested leave. The Sixth Circuit,
acknowledging inconsistent precedent within the Sixth Circuit and
Tenth Circuit (Metzler v.
among other circuits, held that FMLA retaliation claims can be
Fed. Home Loan Bank of
brought under 29 U.S.C. § 2615(a)(1), rather than only under
Topeka, 464 F.3d 1164
§ 2615(a)(2). The court further held that inquiring about and
(10th Cir. 2006))
requesting FMLA leave may be protected activity under the FMLA,
CRS-52

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
and thus provide the basis of a retaliation claim, even if an employee
is not entitled to such leave.
Labor &
Ninth Circuit
Crowe v. Wormuth, 74 The Civil Service Reform Act of 1978 allows federal employees to
Eighth Circuit (McAdams v.
Employment
F.4th 1011 (9th Cir.
appeal to the Merit Systems Protection Board (MSPB) for review of
Reno, 64 F.3d 1137 (8th
2023)
any of five “particularly serious” adverse employment actions,
Cir. 1995))
including a removal. Splitting from the Eighth Circuit, the Ninth
Circuit held that when a federal employee seeking MSPB review for
removal adds discrimination claims for actions that are not
expressly listed as adverse employment actions, the employee must
separately file those claims with their agency’s Equal Employment
Opportunity office, even when the removal is factually related to
the discrimination claims. The court reasoned, in part, that
Congress intended to limit the MSPB’s jurisdiction to only the five
adverse employment actions listed in 5 U.S.C. § 7512.
Labor &
Ninth Circuit
Bugielski v. AT&T
The Ninth Circuit held in part that § 406(a)(1)(C) of
Third Circuit (Sweda v.
Employment
Servs., Inc., 76 F.4th
the Employee Retirement Income Security Act (ERISA) establishes a Univ. of Pennsylvania, 923
894 (9th Cir. 2023)
per se rule that classifies even arm’s-length service transactions
F.3d 320 (3d Cir. 2019))
between a plan and a party in interest as “prohibited transactions”

which may be permissible under certain statutory exemptions. The
Ninth Circuit declined to fol ow the reasoning of the Third Circuit,
Seventh Circuit (Albert v.
which has held that a plaintiff must plead factual allegations that
Oshkosh Corp., 47 F.4th
support an element of intent to benefit a party in interest in order
570 (7th Cir. 2022))
to state a prohibited-transaction claim. The Ninth Circuit also
rejected a similarly limited reading of the scope of
§ 406(a)(1)(C) adopted by the Seventh Circuit.
Property
Fifth Circuit
Baker v. City of
In a circuit split, the Fifth Circuit declined to adopt a rule that a
Federal Circuit
McKinney, 84 F.4th 378 state’s actions are not a taking for purposes of the Takings Clause
(AmeriSource Corp. v.
(5th Cir. 2023)
when the state acts pursuant to its police power instead of its
United States, 525 F.3d
eminent domain power. The court instead held more narrowly that
1149 (Fed. Cir. 2008))
the Takings Clause does not require governments to provide

compensation for damaged property when such damage is
objectively necessary for law enforcement officers to prevent
Seventh Circuit (Johnson v.
imminent harm to people. The plaintiff sued the defendant city for
Manitowoc Cnty., 635 F.3d
compensation after law enforcement officers severely damaged her
331 (7th Cir. 2011))e
home in responding to an armed fugitive who was holding a child
CRS-53

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
hostage inside. The court concluded that history, tradition, and
historical precedent established a necessity exception to the Takings
Clause and required dismissal of the plaintiff’s claim for
compensation.
Securities
Ninth Circuit
Lee v. Fisher, 70 F.4th
Sitting en banc, a divided Ninth Circuit affirmed the dismissal of a
Seventh Circuit (Seafarers
1129 (9th Cir. 2023)
putative derivative action filed in federal court against The Gap, Inc.
Pension Plan on behalf of
(en banc)
and its directors (Gap) because a forum-selection clause in Gap’s
Boeing Co. v. Bradway, 23
bylaws provided that the Delaware Court of Chancery was the sole
F.4th 714 (7th Cir. 2022))
and exclusive forum for any derivative action. The majority rejected
the plaintiff’s arguments that the forum-selection clause violated the
antiwaiver provision of the Securities Exchange Act of 1934, federal
public policy, and § 115 of the Delaware General Corporation Law.
The majority acknowledged that its holdings created a circuit split
with the Seventh Circuit.
Tax
D.C. Circuit
Optimal Wireless LLC
The D.C. Circuit widened a circuit split concerning whether a
Fourth Circuit (Liberty
v. IRS, 77 F.4th 1069
provision of the Affordable Care Act (ACA) constitutes a “tax”
Univ., Inc. v. Lew, 733 F.3d
(D.C. Cir. 2023)
within the meaning of the Anti-Injunction Act, 26 U.S.C. § 7421(a).
72 (4th Cir. 2013))
The ACA provision imposes an exaction on large employers for

failing to provide health insurance coverage or providing
noncomplying coverage, 26 U.S.C. § 4980H. The Anti-Injunction Act Seventh Circuit (Korte v.
prohibits lawsuits to restrain the assessment or col ection of a tax.
Sebelius, 735 F.3d 654 (7th
The D.C. Circuit held that the § 4890H exaction is a tax under the
Cir. 2013))
Anti-Injunction Act, reasoning that Congress referred to the
exaction as a tax multiple times within § 4980H. The court also held
that Congress’s other references to the exaction in § 4890H as an
“assessable payment” and “penalty” did not conflict with the term
“tax.”
Tax
Fourth Circuit
Clary Hood, Inc. v.
The Fourth Circuit affirmed the U.S. Tax Court’s partial
Seventh Circuit (Menard,
Comm’r, 69 F.4th 168
disallowance of a corporation’s business deduction for bonuses paid
Inc. v. Comm’r, 560 F.3d
(4th Cir. 2023)
to the company’s CEO because the bonuses exceeded the
620 (7th Cir. 2009))
reasonable allowance for compensation in 26 U.S.C. § 162(a)(1).
The court joined most circuits in applying a multifactor approach
that assesses the reasonableness of compensation under the totality
of the circumstances. In so holding, the court declined to adopt the
Seventh Circuit’s independent investor test, which establishes a
CRS-54

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
rebuttable presumption that an executive’s compensation is
reasonable if shareholders are receiving a sufficiently high rate of
return on their equity investment. The court concluded that the
multifactor test is more in line with the Internal Revenue Service
(IRS) regulations that limit compensation deductions to what is
“reasonable under all the circumstances” and that the independent
investor test was too narrow.
Tax
Fourth Circuit
Pond v. United States,
The Fourth Circuit added to a circuit split over the relationship
Eighth Circuit (Est. of
69 F.4th 155 (4th Cir.
between the common-law mailbox rule, which involves
Wood v. Comm’r, 909 F.2d
2023)
presumptions related to the timeliness and delivery of documents
1155 (8th Cir. 1990))
sent by U.S. mail, and the statutory mailbox rule specific to tax

filings in 26 U.S.C. § 7502. While deciding that a taxpayer could
proceed in a suit seeking a federal tax refund, the court joined the
Tenth Circuit (Sorrentino
Second and Sixth Circuits in deciding that § 7502 supplanted the
v. IRS, 383 F.3d 1187 (10th
common-law rule for tax filings. This position contrasts with that of
Cir. 2004))
the Eighth and Tenth Circuit, which held that § 7502 supplements
the common-law rule.
Tax
Eighth Circuit
Connelly ex rel.
The Eighth Circuit decided that the IRS assessment of the fair
Ninth Circuit (Estate of
Connelly v. United
market value of a closely held corporation properly identified the
Cartwright v. Commi’r,
States, 70 F.4th 412
corporation’s life insurance policy on a deceased shareholder as an
183 F.3d 1034 (9th Cir.
(8th Cir.), cert. granted,
asset, when policy proceeds were used to redeem the decedent’s
1999))
144 S. Ct. 536 (2023)
shares. Characterizing its decision as consistent with governing law

and customary valuation principles, the court acknowledged a split
with the Eleventh Circuit, which held in a similar case that life
Eleventh Circuit (Estate of
insurance proceeds should not be added to the value of a
Blount v. Comm’r’, 428
corporation for tax purposes.
F.3d 1338 (11th Cir. 2005))
Torts
Seventh Circuit
Sargeant v. Barfield, 87
A divided Seventh Circuit held that a federal prisoner could not
Third Circuit (Bistrian v.
F.4th 358 (7th Cir.
bring an action alleging an Eighth Amendment failure-to-protect
Levi, 912 F.3d 79 (3d Cir.
2023)
claim pursuant to Bivens v. Six Unknown Named Agents of Federal
2018))
Bureau of Narcotics, where the Supreme Court recognized an implied
cause of action for persons seeking monetary damages for
constitutional violations committed by certain federal officials. The
circuit panel majority affirmed the dismissal of the plaintiff’s
complaint, which alleged that prison officials retaliated against him
for making complaints against a prison official by housing him with
CRS-55

Acknowledged Circuit
Split on
Subject
Circuit
Citation
Ruling
Controlling Issue
violent inmates. Agreeing with the Fourth Circuit, and disagreeing
with the Third, the majority explained that a failure-to-protect claim
is not one of the recognized Bivens causes of action, and thus it is
for Congress to determine whether to create a remedy for such a
claim.
Transportation
D.C. Circuit
Norfolk S. Ry. Co. v.
The D.C. Circuit recognized a circuit split concerning the scope of
Third Circuit (Union Pac.
Surface Transp. Bd., 72
appellate jurisdiction over decisions of the Surface Transportation
R.R. Co. v. Ametek, Inc.,
F.4th 297 (D.C. Cir.
Board (STB) under the Hobbs Act, 28 U.S.C. §§ 2341-51. The
104 F.3d 558 (3d Cir.
2023), petition for cert.
Hobbs Act, along with 28 U.S.C. § 2321, confers appellate courts
1997))
filed, No. 23-577 (Nov.
with jurisdiction to review all final STB orders; however, 28 U.S.C. §
29, 2023)
1336 vests a district court with exclusive jurisdiction to review
questions it certifies to the STB. Here, the D.C. Circuit held that
Seventh Circuit (Ry. Lab.
where a district court certifies a question to the STB, an appellate
Execs.’ Ass’n v. ICC, 894
court has jurisdiction to review any additional issues decided by the
F.2d 915 (7th Cir. 1990))
STB.

Eighth Circuit (R.R. Salvage
& Restoration, Inc. v. STB,
648 F.3d 915 (8th Cir.
2011))
Transportation
Seventh Circuit
Ye v. GlobalTranz
The Seventh Circuit, aligning itself with the Eleventh Circuit, held
Ninth Circuit (Mil er v.
Enters., 74 F.4th 453
that the express preemption provision in the Federal Aviation
C.H. Robinson Worldwide,
(7th Cir. 2023), cert.
Administration Authorization Act forecloses a common law
Inc., 976 F.3d 1016 (9th
denied, 144 S. Ct. 564
negligent hiring claim against a freight broker based on a motor
Cir. 2020))
(2024)
carrier’s involvement in a fatal col ision. In disagreement with the
Ninth Circuit, the court further held that Congress did not intend
for the exception to preemption for a state’s motor vehicle safety
laws to excuse laws imposing obligations on brokers from
preemption. The court reasoned, in part, that brokers are listed in
the express preemption provision but are not mentioned in the
exception or the statutory definition of “motor vehicle.”
Source: Cases identified by CRS using the Westlaw legal database and searching for federal appeals court decisions identified for publication in the Federal Reporter.
CRS-56

The United States Courts of Appeals: Background and Circuit Splits from 2023

Author Information

Michael John Garcia, Coordinator
Alexander H. Pepper
Deputy Assistant Director/ALD
Legislative Attorney

Craig W. Canetti, Coordinator
Jimmy Balser
Section Research Manager
Legislative Attorney

Acknowledgments
This Report includes material originally published in the Congressional Court Watcher, a weekly CRS
Legal Sidebar series. CRS attorneys who prepared material for the Congressional Court Watcher in 2023
included attorneys Bryan L. Adkins, Peter J. Benson, Justin C. Chung, Michael D. Contino, Madeline W.
Donley, Rosemary W. Gardey, Jason O. Heflin, Juria L. Jones, Andreas Kuersten, Hannah-Alise Rogers,
Christina L. Shifton, Karen Sokol, Dave S. Sidhu, Matthew D. Trout, and Christopher T. Zirpoli. CRS
paralegal Christine Burkhardt compiled circuit splits previously identified in the Congressional Court
Watcher for inclusion in the Report’s Table and cite-checked identified cases.

Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan
shared staff to congressional committees and Members of Congress. It operates solely at the behest of and
under the direction of Congress. Information in a CRS Report should not be relied upon for purposes other
than public understanding of information that has been provided by CRS to Members of Congress in
connection with CRS’s institutional role. CRS Reports, as a work of the United States Government, are not
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