Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Oct. 25–Oct. 31, 2021)

Legal Sidebari

Congressional Court Watcher: Recent

Appellate Decisions of Interest to Lawmakers

(Oct. 25–Oct. 31, 2021)

November 1, 2021

The federal courts issue hundreds of decisions every week in cases involving diverse legal disputes. This

Sidebar series selects decisions from the past week that may be of particular interest to federal lawmakers,

focusing on the orders and decisions of the Supreme Court and precedential decisions of the courts of

appeals for the thirteen federal circuits. Selected cases typically involve the interpretation or validity of

federal statutes and regulations, or constitutional issues relevant to Congress’s lawmaking and oversight

functions.

Some of the cases identified in this Sidebar, or the legal questions they address, are examined in other

CRS general distribution products. Members of Congress and congressional staff may contact the authors

to subscribe to the CRS Legal Update newsletter and receive regular notifications of new products

published by CRS attorneys.

Decisions of the Supreme Court

This past week, the Supreme Court added the following cases to its docket:

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Environmental Law: Section 111(d) of the Clean Air Act, 42 U.S.C. § 7411(d), directs

the Environmental Protection Agency (EPA) to set emission standards for certain

pollutants produced by existing stationary sources. In 2015, the EPA under the Obama

Administration relied on § 7411(d) to issue the Clean Power Plan rule to regulate carbon

dioxide emissions from existing fossil fuel-fired power plants. The EPA repealed the rule

under the Trump Administration and replaced it with the Affordable Clean Energy (ACE)

rule. The D.C. Circuit, however, vacated the ACE rule and EPA’s repeal of the Clean

Power Plan. The Supreme Court granted certiorari in and consolidated four cases from

the D.C. Circuit arising from the Clean Power Plan litigation to consider the breadth of

regulatory authority delegated by Congress to the EPA through § 7411(d) (West Virginia

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v. EPA; North American Coal Corp. v. EPA; Westmoreland Mining Holdings v. EPA;

North Dakota v. EPA).

Immigration: The Supreme Court granted certiorari in a case from the Ninth Circuit

involving several states’ attempt to intervene to defend a Trump-era immigration rule that

the Biden Administration no longer seeks to defend. The Court granted review only of the

question as to whether the states may intervene to defend a federal rule that the United

States ceases to defend, and did not grant review to consider the validity of the

underlying immigration rule (Arizona v. City and County of San Francisco).

The Supreme Court also declined, by a 6-3 vote, an application for injunctive relief in a case involving a

constitutional challenge to Maine’s emergency rule that health care workers be vaccinated against

Coronavirus Disease 2019 (COVID-19), a requirement subject to limited exemptions for medical but not

religious reasons. (The First Circuit’s consideration of the case is discussed in an earlier Congressional

Court Watcher Sidebar.) (Does v. Mills).

Decisions of the U.S. Courts of Appeals

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Civil Procedure: The False Claims Act (FCA) empowers the federal government to

bring claims against those who defraud the United States. The FCA also allows private

parties (relators) to bring such claims on the government’s behalf and recover a share of

the proceeds of the action (qui tam actions). The relationship between the government

and relators, including the procedures the government may use to dismiss an FCA action

in which the government had initially decided not to participate, are governed by 33

U.S.C. § 3730(c). Adding to a circuit split over the process for government dismissal of

FCA qui tam actions, the Third Circuit held that the government must first intervene and

become a party to the case before seeking dismissal. The Third Circuit also contributed to

a circuit split on a related issue, in concluding that the government is not automatically

entitled to dismissal in such circumstances, but instead its motion to dismiss will be

considered under the framework of Federal Rule of Civil Procedure 41. Under that

framework, the government is generally entitled to dismissal if it asks to end the lawsuit

before the defendant has responded to the complaint, but a court has more discretion over

dismissal if the defendant has already responded (Polansky v. Executive Health

Resources, Ltd.).

Civil Procedure: Earlier this year in TransUnion LLC v. Ramirez, the Supreme Court

observed that when a federal statute provides a plaintiff with a cause of action based on a

defendant’s violation of federal law, the plaintiff must still satisfy all constitutional

requisites for standing, including identifying a “concrete harm” suffered as a result of the

violation. TransUnion held that courts must consider whether the alleged harm has a

close relationship to a harm traditionally recognized as providing a basis for a lawsuit in

American courts. In vacating an earlier, pre-TransUnion opinion and issuing a new

decision, a divided Eleventh Circuit panel held that the plaintiff satisfied constitutional

standing requirements to bring suit under the Fair Debt Collection Practices Act

(FDCPA), which limits debt collectors’ ability to communicate consumers’ personal

information to third parties “in connection with the collection of any debt.” The court

concluded that plaintiff’s alleged injury—the sending of sensitive medical information by

a debt collector to employees of an unauthorized third-party vendor—constituted a

concrete harm because it was sufficiently analogous to the common-law tort of public

disclosure of private facts. It also concluded that congressional findings included in the

FDCPA indicated that the plaintiff’s alleged harm fit within the category of privacy harms

that Congress intended to address. Separately, the court decided that the defendant debt

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collector’s transmittal of the plaintiff’s personal information to the vendor constituted

communication “in connection with the collection of any debt” under the FDCPA

(Hunstein v. Preferred Collection and Management Services, Inc.).

Communications: The New & Emerging Technologies 911 Improvement Act required

development of a plan for migrating to a national Voice over Internet Protocol (VoIP)enabled emergency network, and legislated “parity” between VoIP-based and non-VoIPbased providers and subscribers. The Fourth Circuit agreed with a Federal

Communications Commission (FCC) ruling that the Act prohibits state and local

governments from charging higher 911 fees to VoIP providers than non-VoIP providers.

Examining the Act’s text, structure, and purpose, the Court found Congress’s intent in the

parity provision to be unambiguous (Autauga County Emergency Management

Communication District v. FCC).

Criminal Law & Procedure: The First Step Act altered procedures for judicial

consideration of motions for compassionate release, allowing defendants to file a motion

when extraordinary and compelling reasons support their release. The Third Circuit held

that a defendant’s motion for compassionate release under the Act could not be premised

solely on substantial assistance provided in a prosecution or criminal investigation,

because the Act did not displace existing procedural requirements for motions for

sentence reductions based on such assistance. Still, the court observed that assistance

could be a relevant, though not exclusive, factor in a court’s analysis of whether

compassionate release was warranted under the First Step Act (United States v. Claude).

Criminal Law & Procedure: The federal in forma pauperis statute, 28 U.S.C. § 1915,

allows prisoners to bring a civil action or appeal a judgment in federal court without

prepaying filing fees, unless three or more prior actions or appeals were dismissed on

certain enumerated grounds, including failure to state a claim. In Heck v. Humphreys, the

Supreme Court held that to recover damages for allegedly unconstitutional conviction or

imprisonment under 42 U.S.C. § 1983, the plaintiff’s conviction or sentence must have

been reversed on appeal, expunged by executive action, declared invalid by a state court,

or called into question by a federal court’s issuance of habeas relief. Adding to a circuit

split, the Third Circuit held that a prisoner’s prior suits barred on Heck grounds were

properly dismissed for failure to state a claim and therefore constituted “strikes” under

the in forma pauperis statute (Garrett v. Murphy).

Criminal Law & Procedure: The federal money laundering statute, 18 U.S.C. § 1956,

provides courts with extraterritorial jurisdiction over covered conduct in some

circumstances, including when, in the case of a noncitizen, the conduct “occurs in part”

in the United States. In upholding a noncitizen’s conviction under § 1956, the Fourth

Circuit held, among other things, that conspiracy charges under § 1956 may reach

extraterritorial conduct, and that the noncitizen defendant’s conspiratorial conduct with

persons located in the United States to further his money laundering activities in Nigeria

fell under the statute (United States v. Ojedokun).

Election Law: Affirming the denial of injunctive relief, a divided Fifth Circuit panel

concluded that plaintiffs’ request to enjoin a county’s administration of drive-thru voting

in the November 2020 election was moot, and the panel declined plaintiffs’ request that

drive-thru voting be enjoined in future elections. The majority observed that there was no

evidence the county would offer drive-thru voting in the future or do so in a way that

would evade future review, and ruled that the plaintiffs’ (a voter and candidates in the

2020 election) claim for prospective relief to preserve election integrity was too

generalized to satisfy standing requirements (Hotze v. Hudspeth).

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Election Law: Federal courts have discretion to award attorneys’ fees to a “prevailing

party” (other than the United States) in civil rights suits under 42 U.S.C. § 1988. The

Eleventh Circuit held that a nongovernmental organization that obtained a temporary

restraining order against a secretary of state regarding certain election matters was a

“prevailing party” under § 1988. While the defendant characterized the order as affording

only modest relief compared to what the organization requested, the court concluded it

was enough that the secretary altered his conduct to the benefit of the organization as a

result of the order (Common Cause Georgia v. Secretary, State of Georgia).

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Immigration: Federal law provides that aliens may be detained during the pendency of

removal proceedings against them, and 8 U.S.C. § 1226(c) requires detention of those

who engaged in specified criminal activity. In reviewing a class action brought by

persons held under § 1226(c), a divided First Circuit panel ruled aliens subject to

§ 1226(c) do not have a per se constitutional right to a hearing concerning the

reasonableness of their continued detention if held beyond six months. Instead, whether a

right attaches depends on whether the alien’s individualized circumstances make

prolonged detention unreasonable. Because resolution of this issue resolved the common

question central to the class’s claims, the majority vacated as advisory the district court’s

declaratory and injunctive relief for individual class members for whom a constitutional

right might exist (Reid v. Donelan).

Immigration: Aliens may qualify for asylum if they face persecution in their home

countries on account of a statutorily protected ground, including membership in a

“particular social group.” The United States’ policy on whether aliens fleeing domestic

violence may constitute a “particular social group” has changed several times; in 2021,

the Attorney General rescinded earlier agency rulings that held that domestic violence

generally cannot form an asylum claim. The Fifth Circuit held that an asylum-seeker’s

alleged social group—Honduran women unable to leave their relationships due to

domestic violence fears—did not constitute a “particular social group.” The court held

that the Attorney General’s interpretation of the asylum statute was not entitled to

deference, because even assuming the statute was ambiguous, it would be unreasonable

to interpret a “particular social group” to be defined only by reference to the persecution

faced by the members of that group (Jaco v. Garland).

Immigration: Under 8 U.S.C. § 1325(a)(1), it is a criminal offense for an alien “to enter

the United States at any time or place other than as designated by immigration officers.”

The Ninth Circuit held that § 1325(a)(1), enacted to control unauthorized immigration, is

a regulatory offense for which no presumption of scienter (i.e., knowledge of

wrongdoing) applies. The court ruled that the government did not need to show that the

defendant had knowledge of his alienage to convict (United States v. Rizo-Rizo).

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Immigration: The doctrine of consular non-reviewability shields consular decisions

regarding visa applications from judicial review. In its first published decision on

consular non-reviewability, the Eleventh Circuit held that the doctrine does not divest

courts of subject-matter jurisdiction over visa claims. Instead, the doctrine reflects

judicial reluctance to review the Executive’s exercise of power delegated by Congress,

which has plenary authority to make rules for the exclusion of aliens, so long as the

exercise is based on a facially legitimate and bona fide reason. Observing possible

tension with the more deferential views of two other circuits, the Eleventh Circuit

described a decision as “facially legitimate” if a valid statutory basis is cited for the

exclusion, and “bona fide” when the Executive identifies a factual predicate for the visa

denial (Del Valle v. Secretary of State).

Public Health: The Food and Drug Administration (FDA) denied an application to

market flavored e-cigarettes under the Family Smoking Prevention and Tobacco Control

Act. The Fifth Circuit granted a stay of the FDA’s ruling, thereby allowing the applicant

to continue marketing and selling its products. The court found, among other things, that

the applicant was likely to succeed on the merits based on its Administrative Procedure

Act challenge because the FDA did not act reasonably in denying the application. The

court also found the applicant demonstrated a likelihood of irreparable harm (Wages &

White Lion Investments, L.L.C. v. FDA).

Tax: The Eleventh Circuit affirmed summary judgment for the government in a case

deciding whether a partner in a limited liability company or partnership must raise a

“supervisory approval issue” under 26 U.S.C. § 6751(b)(1) before or after he files a

refund lawsuit. The Internal Revenue Service (IRS) is prohibited under § 6751(b)(1) from

assessing a tax penalty “unless the initial determination of such assessment is personally

approved (in writing) by the immediate supervisor of the individual making such

determination.” The Eleventh Circuit held that in partnership tax cases controlled by the

Tax Equity and Fiscal Responsibility Act of 1982, the supervisory approval issue must be

exhausted with the IRS before the partner files his individual refund lawsuit and must be

raised during the earlier partnership-level proceedings (Ginsburg v. United States).

Veterans: The Veterans’ Benefits Act (VBA) sets out a comprehensive scheme governing

the appointment, employment, and discipline of Department of Veterans Affairs

physicians. Joining every other circuit, the Tenth Circuit held that the process set forth in

the VBA is the exclusive remedy for review of an employee’s termination, foreclosing

judicial review. The court also held that the Administrative Procedure Act could not be

used to obtain the judicial review the plaintiff was denied under the VBA’s

comprehensive scheme (Tompkins v. Dep’t of Veterans Affairs).

Author Information

Michael John Garcia

Section Research Manager

Caitlain Devereaux Lewis

Section Research Manager

Congressional Research Service

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