Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (April 25–May 1, 2022)

Legal Sidebari

Congressional Court Watcher: Recent

Appellate Decisions of Interest to Lawmakers

(April 25–May 1, 2022)

May 2, 2022

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

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

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

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

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

functions.

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

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Decisions of the Supreme Court

Last week, the Supreme Court issued decisions in two cases for which it heard oral arguments:

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Civil Rights: In a 6-3 decision, the Court held that emotional distress damages are not

recoverable in private suits alleging discrimination under the Rehabilitation Act of 1973

or the Affordable Care Act (Cummings v. Premier Rehab Keller, PLLC).

Transportation: An evenly divided 4-4 Court (with Justice Amy Coney Barret recused)

affirmed the Seventh Circuit’s judgment that a locomotive is in “use” on a railroad line

for purposes of the Locomotive Inspection Act and its implementing safety regulations

when the train is stationary and in need of service (LeDure v. Union Pacific Railroad

Co.).

The Supreme Court also granted certiorari to review two cases:

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Civil Rights: The Court agreed to hear a case from the Fifth Circuit in which it is asked

whether the statute of limitations to bring a claim under 42 U.S.C. § 1983 seeking

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deoxyribonucleic acid (DNA) testing of crime-scene evidence starts once the state trial

court denies the DNA testing, or only after all state-court actions, including appeals, are

completed (Reed v. Goertz).

Civil Procedure: The Court agreed to review a case from the Pennsylvania Supreme

Court in which it is asked to consider whether the Fourteenth Amendment’s Due Process

Clause bars a state from requiring an out-of-state corporation to consent to personal

jurisdiction in the state’s courts to do business in the state (Mallory v. Norfolk Southern

Railway Co.).

Decisions of the U.S. Courts of Appeals

Topic headings marked with an asterisk (*) indicate cases where the appellate court’s controlling opinion

recognizes a split among the federal appellate courts on a key legal issue resolved in the opinion,

contributing to a non-uniform application of the law among the circuits.

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Abortion: In a brief per curiam opinion, a divided Fifth Circuit panel ordered dismissal

of legal challenges to the private enforcement provisions of the Texas Heartbeat Act (also

known as S.B. 8), after the Texas Supreme Court answered a certified question from the

panel in which it concluded that the Texas medical board and other state actors could take

disciplinary action against those who violate S.B. 8. S.B. 8 generally bans abortion once a

fetal heartbeat is detected and is enforced exclusively through private civil actions against

those who perform, aid, or abet prohibited abortions. The circuit court instructed the

district court to consider whether plaintiffs had standing to challenge another provision of

S.B. 8, which would make them jointly and severally liable for legal costs incurred by the

state in defending the bill (Whole Women’s Health v. Jackson). (Earlier appellate and

Supreme Court decisions in lawsuits challenging S.B. 8 in federal court are discussed in

prior editions of the Congressional Court Watcher.)

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Civil Procedure: The Third Circuit ruled that a district court misapplied the federal

removal statute, 28 U.S.C. § 1446, which may permit a defendant to remove a case from

state to federal court if certain requirements are met. Under § 1446(b), a defendant

generally has 30 days to seek removal after receiving a copy of a pleading that reveals the

existence of federal jurisdiction or, if that pleading does not show that federal jurisdiction

exists, the defendant may seek removal within 30 days of receipt of an amended pleading,

motion, order, or other paper that does so. Joining other circuits, the Third Circuit held

that these 30-day clocks are triggered by information within the four corners of the

pleading or other documents that the defendant receives, and not by what the defendant

subjectively knew already, including from documents already in its possession. Having

concluded that the defendant timely removed two class action complaints to federal court,

the circuit court remanded the case to the district court to determine whether an exception

found in the Class Action Fairness Act nonetheless required the district court to decline to

decide the cases (McLaren v. UPS Store Inc.).

Criminal Law & Procedure: The Ninth Circuit held that neither the Stored

Communications Act nor the Protect Our Children Act transformed Yahoo’s and

Facebook’s searches of the criminal defendants’ user accounts and reporting of illegal

activity to federal law enforcement into government searches subject to the Fourth

Amendment. More generally, the panel majority concluded there was insufficient law

enforcement involvement in the searches to trigger Fourth Amendment protections

(United States v. Rosenow).

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*Environmental Law: Overruling earlier circuit precedent to the contrary, the First

Circuit, sitting en banc, held that a provision of the Clean Water Act, 33 U.S.C.

§ 1319(g)(6)(A), which precludes citizen enforcement suits that seek to apply a civil

penalty to a defendant for an ongoing violation, does not limit citizen suits seeking

declaratory or injunctive relief to address an ongoing violation of the Act. In so holding,

the court switched sides in a multicircuit split on the proper interpretation of the

limitation, breaking from the view it once shared with the Eighth Circuit, and instead

adopting the interpretation endorsed by the Tenth Circuit (Blackstone Headwaters Coal.

v. Gallo Builders, Inc.).

Environmental Law: The Sixth Circuit held that a declaratory judgment of liability

under the Comprehensive Environmental Response, Compensation, and Liability Act

(CERCLA) is sufficient to trigger CERCLA’s statute of limitations for contribution

claims, under which a party held liable for costs associated with cleaning up hazardous

waste sites may seek contribution from others who are also potentially liable for cleanup

costs (Georgia Pacific Consumer Products LP v. NCR Corp.).

Immigration: The en banc Ninth Circuit vacated an earlier three-judge panel decision

ruling that a California law phasing out private detention centers in the state was likely

unlawful. The case is now ordered to be reheard by the full en banc court. As discussed in

an earlier edition of the Congressional Court Watcher, a divided three-judge Ninth

Circuit panel had ruled that the plaintiffs would likely succeed in their claims that the

state law impermissibly interfered with the Secretary of Homeland Security’s statutory

authority to contract with private facilities to detain aliens targeted by the federal

government for removal. The panel majority also ruled that the state law violated the

intergovernmental immunity doctrine, which bars states from directly regulating or

discriminating against the federal government, by providing certain exemptions for state

agencies that were unavailable to federal authorities (GEO Group, Inc. v. Newsom).

Indian Law: A divided Sixth Circuit held that the district court erred in construing an

Indian Health Service regulation, 42 C.F.R. § 136.30, requiring that a covered tribe may

receive Medicare-like rate (MLR) discounts on services provided to tribe members at

Medicare-participating hospitals only when the tribe pays for such care using funds

earmarked for its Contract Health Services (CHS) program. The majority concluded that

MLR discounts are available for CHS-authorized care even when a tribe pays for the

services using non-CHS sources. The court remanded the case to the lower court for

further proceedings, including to assess whether the tribe’s CHS program authorized the

particular services at issue in the case (Saginaw Chippewa Indian Tribe of Michigan v.

Blue Cross Blue Shield of Michigan).

International Law: The First Circuit construed the meaning of Article 17(1) of the

Montreal Convention (formally known as the Convention for the Unification of Certain

Rules for International Carriage by Air), which makes carriers liable to passengers

injured in an “accident” taking place onboard an aircraft or when embarking or

disembarking a plane. Looking to domestic and foreign jurisprudence interpreting the

Convention and a predecessor treaty, the First Circuit held that an “accident” is an event

that a reasonable passenger in commercial air travel, standing in the plaintiff’s shoes,

would not expect to happen (Moore v. British Airways PLC).

Separation of Powers: The Ninth Circuit held that 42 U.S.C. § 902(a)(3), which limits

the President’s ability to remove the Commissioner of Social Security except for “neglect

of duty or malfeasance in office,” violates separation-of-powers principles by

unconstitutionally infringing on the President’s authority to remove the head of an

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executive agency. (The Commissioner conceded the provision was unconstitutional.) The

panel concluded that the removal protection must be severed from the statute, leaving the

President free to remove the Commissioner at will. Turning to the question of the

appropriate remedy where the petitioner challenged the denial of her request for Social

Security benefits because the Commissioner served under an unconstitutional removal

provision, the panel concluded the claimant had not established that the provision caused

her actual harm. The claimant did not dispute that the Social Security officers involved in

denying her claim served under valid appointments, and the panel found nothing in the

record to suggest a link between the removal provision and her case. The panel also

observed that accepting the claimant’s argument would effectively undo all disability

decisions made by the Social Security Administration while the removal provision was

operative, an outcome which the panel flatly rejected (Kaufmann v. Kijakazi).

Territories: The First Circuit held that the Puerto Rico Oversight, Management, and

Economic Stability Act (commonly known as PROMESA), which authorized the

restructuring of the commonwealth’s debt, preempted Puerto Rico’s existing laws that

govern public schoolteacher pensions. The court held modifications to the pension plan

approved in the debt restructuring process were valid, even though Puerto Rico did not

enact legislation permitting the plan to modify the commonwealth’s existing obligations

(In re Financial Oversight & Mgmt. Bd. for Puerto Rico).

Author Information

Michael John Garcia

Deputy Assistant Director/ALD

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