# The United States Courts of Appeals: Background and Circuit Splits from 2024

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/crs%3AR48369

## Record

- **Collection:** Congressional research report
- **Document type:** Reports
- **Published:** May 1, 2025
- **Citation:** R48369

## Text

The United States Courts of Appeals:
Background and Circuit Splits from 2024
Updated May 1, 2025

Congressional Research Service
https://crsreports.congress.gov
R48369

SUMMARY

The United States Courts of Appeals:
Background and Circuit Splits from 2024

R48369
May 1, 2025
Michael John Garcia,

Coordinator
The U.S. Courts of Appeals frequently act as the final arbiters of questions of law within their
Deputy Assistant
respective jurisdictions. Although the Supreme Court of the United States sits at the pinnacle of
Director/ALD
the American judicial system and acts as the final arbiter on questions of federal law, the number
of precedential decisions issued each year by the Court is quite small. For example, the Court
issued final decisions in 69 argued cases in its 2023 Term (64 disposed of through signed
Craig W. Canetti
opinions and the remaining through per curiam opinions) and in 68 argued cases in its 2022 Term
Section Research Manager
(66 through signed opinions and 2 through per curiam opinions). By contrast, the courts that sit
just below the Supreme Court in the federal judicial hierarchy—the U.S. Courts of Appeals for
13 “circuits”—issue thousands of precedential decisions every year. The most current data
available from the U.S. Courts reveal that in FY2024 and FY2023, the appellate courts for the 12
“regional” circuits (i.e., all of the federal courts of appeals other than the U.S. Court of Appeals for the Federal Circuit)
published, respectively, 3,369 and 3,325 precedential opinions disposing of appeals to those courts.

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 84 circuit splits that arose or
widened within the federal courts of appeals in 2024 that remain in place as of the date of this report. The discussed circuit
splits were identified by the Congressional Court Watcher, a 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 2024

Contents
The Structure of the Federal Court System ..................................................................................... 1
The Structure and Role of the U.S. Courts of Appeals.............................................................. 3
The Importance of Circuit Splits in the Evolution and Application of Federal Law ................ 7
Considerations for Congress............................................................................................................ 9
Circuit Splits That Emerged or Widened in 2024 on Topics of Congressional Interest ................ 10
Methodology ............................................................................................................................11

Figures
Figure 1. Geographic Boundaries of the U.S. Courts of Appeals and District Courts .................... 4

Tables
Table 1. Circuit Splits Recognized in 2024 ................................................................................... 13

Contacts
Author Information........................................................................................................................ 50

Congressional Research Service

The United States Courts of Appeals: Background and Circuit Splits from 2024

T

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 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 13
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 84 circuit splits that arose or deepened within
the federal courts of appeals in 2024, and that remain in place as of the date of this report. The
discussed circuit splits were identified by the Congressional Court Watcher, a 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, 3 circuit courts, and 13 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 (stating that 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 (2023);
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 Apr. 30, 2025); Cong. Rsch
Serv., Power of Congress over Territories, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/
artIV-S3-C2-3/ALDE_00013511/ (last visited Apr. 30, 2025). 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.

Congressional Research Service

1

The United States Courts of Appeals: Background and Circuit Splits from 2024

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 13 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 Apr. 30, 2025) [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, 587 U.S. 435, 438 (2019) (quoting Exxon Mobil Corp. v. Allapattah Servs. Inc., 545 U.S. 546,
552 (2005)).
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 Apr. 30, 2025) [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/aboutcourt (last visited Apr. 30, 2025).
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 12-month period ending March 31, 2024, for example, approximately 12.5% of all filings in the 12 regional
U.S. Courts of Appeals involved appeals of agency administrative decisions. About 80% of reviewed agency
administrative decisions were appeals of immigration decisions by the Board of Immigration Appeals. Federal Judicial
Caseload Statistics 2024, ADMIN. OFFICE OF THE U.S. COURTS, https://www.uscourts.gov/data-news/reports/statisticalreports/federal-judicial-caseload-statistics/federal-judicial-caseload-statistics-2024 (last visited Apr. 30, 2025).

Congressional Research Service

2

The United States Courts of Appeals: Background and Circuit Splits from 2024

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 13 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 12 regional U.S. Courts of
Appeals.
The U.S. Court of Appeals for 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 13th 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 Federal
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 between 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 Apr. 30, 2025) [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 2024, U.S. Court of Appeals for
the Federal Circuit, ADMIN. OFFICE OF THE U.S. COURTS, https://www.uscourts.gov/data-news/reports/statisticalreports/judicial-business-united-states-courts/judicial-business-2024/us-courts-appeals-judicial-business-2024 (last
(continued...)

Congressional Research Service

3

The United States Courts of Appeals: Background and Circuit Splits from 2024

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 suits 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 Apr. 30, 2025).

visited Apr. 30, 2025) [hereinafter Judicial Business 2024—Federal Circuit]; Differences Between Circuits, supra note
18.
23 28 U.S.C. § 1295(a)(1)–(5); Judicial Business 2024—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, https://www.uscourts.cavc.gov/
about.php (last visited Apr. 30, 2025).

Congressional Research Service

4

The United States Courts of Appeals: Background and Circuit Splits from 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 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, during its 2023 Term, the Court heard arguments in 69 cases,
deciding 64 through signed opinions and 4 through per curiam opinions, while in its 2022 Term,
the Court heard arguments in 68 cases, deciding 66 through signed opinions and 2 through per
curiam opinions.27 (The total number of cases filed in the Supreme Court was 4,223 in the 2023
Term and 4,159 in the 2022 Term.28)
By contrast, the most recent data available from the Administrative Office of the U.S. Courts
indicate that in FY2024 and FY2023 the 12 regional federal circuits (i.e., all of the federal courts
of appeals other than the Federal Circuit) published, respectively, 3,369 and 3,325 precedential
opinions.29 Overall, in FY2024, the 12 regional U.S. Courts of Appeals collectively issued 23,460
appellate opinions or orders in cases terminated on the merits, and 24,534 such opinions or orders
in FY2023.30
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

25 See Sentilles v. Inter-Caribbean Shipping Corp., 361 U.S. 107, 112 (1959) (Frankfurter, J., dissenting) (noting that

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., 2024 YEAR-END REPORT ON THE FEDERAL JUDICIARY 10 (2024),
https://www.supremecourt.gov/publicinfo/year-end/2024year-endreport.pdf [hereinafter FEDERAL JUDICIARY 2024
YEAR-END REPORT]; HON. JOHN G. ROBERTS, JR., 2023 YEAR-END REPORT ON THE FEDERAL JUDICIARY 8 (2023),
https://www.supremecourt.gov/publicinfo/year-end/2023year-endreport.pdf. 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 2024 YEAR-END REPORT ON THE FEDERAL JUDICIARY, supra note 27, at 10. Besides several dozen “merits” decisions
issued by the Court each year after full briefing and oral argument, the Supreme 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 Report R47382, Congressional Control over
the Supreme Court, by Joanna R. Lampe (2023), at 27-32.
29 ADMIN. OFFICE OF THE U.S. COURTS, U.S. COURTS OF APPEALS—TYPE OF OPINION OR ORDER FILED IN CASES
TERMINATED ON THE MERITS, BY CIRCUIT, DURING THE 12-MONTH PERIOD ENDING SEPTEMBER 30, 2024 at 1 tbl. B-12
(2024), https://www.uscourts.gov/sites/default/files/2025-01/jb_b12_0930.2024.pdf [hereinafter U.S. COURTS, tbl. B-12
(2024)]; ADMIN. OFFICE OF THE U.S. COURTS, U.S. COURTS OF APPEALS―TYPE OF OPINION OR ORDER FILED IN CASES
TERMINATED ON THE MERITS, BY CIRCUIT, DURING THE 12-MONTH PERIOD ENDING SEPTEMBER 30, 2023 at 1 tbl. B-12
(2023), https://www.uscourts.gov/sites/default/files/data_tables/jb_b12_0930.2023.pdf [hereinafter U.S. COURTS, tbl.
B-12 (2023)]. These tallies include both signed and per curiam opinions, but not unsigned published orders that do not
“expound the law as applied to the facts of the case and detail the judicial reasons upon which the judgment is based.”
U.S. COURTS, tbl. B-12 (2024), supra, at Note.
30 U.S. COURTS, tbl. B-12 (2024), supra note 29; U.S. COURTS, tbl. B-12 (2023), supra note 29.
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, Pub. L. No. 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.

Congressional Research Service

5

The United States Courts of Appeals: Background and Circuit Splits from 2024

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
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 12 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 Section 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 12 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

32 S. Ct. R. 10(a).
33 S. Ct. R. 10(a), (b).
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, 589 U.S. 35, 38 (2020) (emphasis added).
40

Id.

41 28 U.S.C. § 1292(a).
42 Id. § 1292(b).

Congressional Research Service

6

The United States Courts of Appeals: Background and Circuit Splits from 2024

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
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 2 or more of the 13 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 circuits that hear their cases, and also may lead to greater uncertainty for
litigants in the circuits that have not yet addressed the issue.47
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

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 13 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 Apr. 30, 2025)
[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
(continued...)

Congressional Research Service

7

The United States Courts of Appeals: Background and Circuit Splits from 2024

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 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 13 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, unless and until the Supreme Court grants certiorari to resolve it.58 In the absence of a

judicial rulings. For further discussion, see CRS Report R47882, Agency Nonacquiescence: An Overview of
Constitutional and Practical Considerations, by Benjamin M. Barczewski (2023).
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
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.

Congressional Research Service

8

The United States Courts of Appeals: Background and Circuit Splits from 2024

Supreme Court decision, the federal courts of appeals will remain the final decisionmakers 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 more
challenging for an individual Member or their staff to monitor judicial developments at the
appellate level than at the Supreme Court.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
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.”).
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
(continued...)

Congressional Research Service

9

The United States Courts of Appeals: Background and Circuit Splits from 2024

One tool available to help Congress identify federal appellate court decisions that may be of
legislative interest is the Congressional Research Service’s (CRS’s) 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 13 federal circuits. Selected
cases typically involve the interpretation or validity of federal statutes, the 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 2024, 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 2024 on
Topics of Congressional Interest
Table 1 below identifies 84 appellate court decisions from 2024 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. 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.68
Identified cases are organized into 23 topics:
•
•
•
•
•
•
•
•
•
•
•
•

Arbitration (2 cases)
Bankruptcy (1 case)
Civil Procedure (6 cases)
Civil Rights (4 cases)
Class Actions (2 cases)
Communications (2 cases)
Criminal Law & Procedure (24 cases)
Education (1 case)
Election Law (1 case)
Employee Benefits (1 case)
Environmental Law (6 cases)
Firearms (2 cases)

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.”).
68 For example, in United States v. Dubois, 94 F.4th 1284 (11th Cir. 2024), the Eleventh Circuit adopting the majority
position on two issues that have divided the federal appellate courts concerning when a state conviction constitutes a
“controlled substance offense” under the Sentencing Guidelines. The Supreme Court subsequently vacated the Eleventh
Circuit’s decision and remanded for further consideration in light of an intervening Supreme Court decision relevant to
the defendant’s underlying challenge to his criminal conviction. Dubois v. United States, 145 S. Ct. 1041 (2025).

Congressional Research Service

10

The United States Courts of Appeals: Background and Circuit Splits from 2024

•
•
•
•
•
•
•
•
•
•
•

Freedom of Information Act (FOIA) (2 cases)
Health (2 cases)
Immigration (10 cases)
Indian Law (1 case)
Labor & Employment (5 cases)
Maritime Law (1 case)
Securities (2 cases)
Separation of Powers (3 cases)
Tax (2 cases)
Torts (3 cases)
Transportation (1 case)

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 summary 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, 2024, and summarized those circuit splits 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 omits conflicting decisions from
other circuits if those decisions were subsequently abrogated. Table 1 does not include citations
to circuit court rulings that are mentioned in a controlling opinion as agreeing with its position in
a circuit split. Table 1 also omits cases where a controlling opinion recognizes the existence of a
circuit split on a particular issue but does not take a position on that issue in deciding the case.
Table 1 does not attempt to present an exhaustive list of all circuit splits that emerged or widened
in 2024. 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

Congressional Research Service

11

The United States Courts of Appeals: Background and Circuit Splits from 2024

(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 law or program.69
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 where the controlling opinion does not specifically acknowledge this
difference in approach. 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.70
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. 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.71 Table 1’s inclusion of citations to referenced cases allows readers to review the
cases themselves and make an independent assessment.

69 See, e.g., United States v. Neely, No. 23-3166, 2024 WL 5229878, at *6–7 (D.C. Cir. Dec. 27, 2024) (widening a

circuit split over the framework used to assess whether the withholding of Miranda warnings during the first stage of a
multistep interrogation process renders inadmissible any incriminating statements made after Miranda warnings are
given).
70 See, e.g., Jama v. State Farm Mut. Auto. Ins. Co., 113 F.4th 924, 933 (9th Cir. 2024) (reversing, in part, a district
court’s class decertification, and describing the dissent as “incorrectly claim[ing] our decision today creates a circuit
split”).
71 For example, in Jacks v. DirectSat USA, LLC, 118 F.4th 888 (7th Cir. 2024), the Seventh Circuit widened a circuit
split over the standard employed for certifying a class with respect to a particular issue raised in litigation involving
damages. The court adopted the approach taken by the Second, Third, Fourth, Sixth, and Ninth Circuits, but criticized
the approach taken by the Fifth Circuit. Id. at 897–98. While acknowledging that the D.C. Circuit had taken a “middle
ground” between these divergent approaches, the Seventh Circuit did not opine whether the D.C. Circuit’s approach
meaningfully conflicted with its own. See id.

Congressional Research Service

12

Table 1. Circuit Splits Recognized in 2024
Acknowledged Circuit
Split on a
Controlling Issue

Subject

Circuit

Citation

Ruling

Arbitration

Ninth Circuit

Voltage Pictures, LLC v.
Gussi, S.A. de C.V.,
92 F.4th 815 (9th Cir.
2024), cert. denied,
No. 23-1261(U.S. Oct. 7,
2024)

The Ninth Circuit split with the Second Circuit over the manner of proper
service of a motion to confirm an arbitral award on adverse parties who
are not available for service in the United States. The Ninth Circuit
reasoned that Section 9 of the Federal Arbitration Act (FAA) did not
govern service because the adverse party would not be amenable to
service by any of the means listed thereunder. As a result, the Ninth
Circuit held that Section 6 of the FAA governed instances where Section 9
does apply. Section 6 requires that any application to the district court be
made “in the manner provided by law for the making and hearing of
motions.” The Ninth Circuit concluded that Federal Rule of Civil
Procedure 5, which governs the service of motions filed in federal court,
applies to service in these cases. The Second Circuit has held that Federal
Rule of Civil Procedure 4, which governs the service of a summons and
complaint in federal court, applies.

Second Circuit
Commodities & Mins Enter.
Ltd. v. CVG Ferrominera
Orinoco, C.A., 49 F.4th 802
(2d Cir. 2022), cert. denied,
143 S. Ct. 786 (2023)

Arbitration

Tenth Circuit

Brock v. Flowers Foods,
Inc., 121 F.4th 753 (10th
Cir. 2024), petition for cert.
filed, No. 24-935 (U.S.
Feb. 28, 2025)

The Tenth Circuit affirmed the lower court’s decision that a Colorado
distributor of baked goods produced by an out-of-state retailer fell under
the exemption from the FAA for transportation workers engaged in
foreign or interstate commerce, meaning that the arbitration clause in the
agreement between the distributor and retailer was not enforceable under
the FAA. Examining both federal caselaw and the particular business
relationship between the defendant and plaintiff, the panel concluded that
the distributor fell under the exemption because it was involved in the
final, intrastate leg of an interstate delivery route on behalf of the retailer.
The panel noted its disagreement with the approach taken by the Fifth
Circuit, which has held that “last-mile” delivery drivers whose routes are
entirely in-state do not fall under the FAA exemption.

Fifth Circuit
Lopez v. Cintas Corp.,
47 F.4th 428 (5th Cir. 2022)

Bankruptcy

Eleventh Circuit

Al Zawawi v. Diss (In re Al
Zawawi), 97 F.4th 1244
(11th Cir. 2024)

The Eleventh Circuit held that 11 U.S.C. § 109(a), which specifies that
“only a person that resides or has a domicile, a place of business, or
property in the United States . . . may be a debtor under this title,” does
not apply to cases brought under Chapter 15 of the Bankruptcy Code,
which addresses cases of cross-border insolvency. The panel described
this ruling as controlled by binding circuit precedent, while noting that its
interpretation was in tension with the plain language of the Bankruptcy
Code. The court also observed that its position conflicted with that of the
Second Circuit, which held that the entirety of Chapter 1 of the
Bankruptcy Code, including Section 109(a), applies to Chapter 15
proceedings.

Second Circuit
Drawbridge Special
Opportunities Fund LP v.
Barnet (In re Barnet),
737 F.3d 238 (2d Cir. 2013)

CRS-13

Acknowledged Circuit
Split on a
Controlling Issue

Subject

Circuit

Citation

Ruling

Civil Procedure

Third Circuit

Knowles v. Temple Univ.,
109 F.4th 141 (3d Cir.
2024)

The Third Circuit decided a case about the interplay between Sections
1920 and 1921 of Title 28 of the U.S. Code, which address the
reimbursement of a prevailing party in litigation for service of process
costs. Section 1920(1) authorizes reimbursement of fees related to the
“clerk and marshal,” while Section 1921 addresses which fees U.S.
“marshals and deputy marshals shall routinely collect, and a court may tax
as costs,” including serving subpoenas and summonses. The Third Circuit
held that “marshal” refers to a public actor under the statutes. Disagreeing
with other courts, including the Seventh and Eleventh Circuits, the Third
Circuit panel held that Section 1920 does not permit awarding fees for
service by private process servers.

Seventh Circuit
Collins v. Gorman,
96 F.3d 1057 (7th Cir. 1996)
Eleventh Circuit
U.S. EEOC v. W&O, Inc.,
213 F.3d 600 (11th Cir. 2000)

Civil Procedure

Third Circuit

Barclift v. Keystone
Credit Servs., LLC, 93
F.4th 136 (3d Cir. 2024),
cert. denied, No. 23-1327
(U.S. Oct. 7, 2024)

A divided Third Circuit held that a plaintiff did not satisfy constitutional
standing requirements to bring claims against a debt-collection company
under the Fair Debt Collection Practices Act for unauthorized third-party
communications. The decision involved application of TransUnion LLC v.
Ramirez, 594 U.S. 413 (2021), where the Supreme Court held that when a
federal statute provides a plaintiff with a cause of action based on a
violation of federal law, a plaintiff establishes standing by identifying a
“concrete harm” that has a close relationship to a traditionally recognized
basis for a tort brought in American courts. Here, the panel majority
observed that the circuits disagree on this standard’s application. Some
favor an element-based approach, in which a plaintiff’s alleged harm must
not lack any element essential for liability under the comparator tort,
while other circuits consider whether the harm alleged by the plaintiff is
the same kind of harm caused by the comparator tort. The panel majority
endorsed the latter approach and found that the plaintiff failed to show
that the harm caused by the defendant sharing her personal information
with a mailing vendor had a close relationship to a traditionally recognized
harm.

Eleventh Circuit
Hunstein v. Preferred
Collection & Mgmt. Servs.,
Inc., 48 F.4th 1236 (11th Cir.
2022)

Civil Procedure

Sixth Circuit

Burton v. Coney Island
Auto Parts Unlimited, Inc.
(In re Vista-Pro
Automotive, LLC), 109
F.4th 438 (6th Cir. 2024),
reh’g en banc denied,
No. 23-5881 (6th Cir.
Aug. 29, 2024), petition for
cert. filed, No. 24-808
(U.S. Nov. 25, 2024)

A divided Sixth Circuit panel upheld the denial of a company’s motion to
vacate a default judgment issued years earlier; the lower court had decided
the motion to vacate was untimely. Federal Rule of Civil Procedure
60(b)(4) permits a federal court to “relieve a party . . . from a final
judgment, order, or proceeding” for enumerated reasons or “any other
reason that justifies relief.” Applying circuit precedent, the panel majority
held that courts retain discretion to deny Rule 60(b)(4) motions—even for
judgments that would otherwise be void due to a fundamental
jurisdictional error or violation of a party’s due process rights—if those
motions are not made within a reasonable time after the final decision.
While acknowledging that other circuits have held that there is no time

First Circuit
Sea-Land Serv., Inc. v.
Ceramica Europa II, Inc.,
160 F.3d 849 (1st Cir. 1998)

CRS-14

Second Circuit
Crosby v. Bradstreet Co.,
312 F.2d 483 (2d Cir. 1963),
cert. denied, 373 U.S. 911
(1963)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

limit for Rule 60(b)(4) motions to vacate void judgments, the panel
majority described its interpretation as consistent with the text of the rule
and principles of equity. The panel suggested that the reasonable-time
clock might not begin to run until enforcement of the judgment is
attempted, but found it unnecessary to resolve that issue.

Third Circuit
United States v. One Toshiba
Color Television,
213 F.3d 147 (3d Cir. 2000)
(en banc)
Fifth Circuit
Norris v. Causey,
869 F.3d 360 (5th Cir. 2017)
Seventh Circuit
Philos Techs., Inc. v. Philos &
D, Inc., 645 F.3d 851 (7th Cir.
2011)
Eighth Circuit
Woods Bros. Constr. Co. v.
Yankton Cnty., 54 F.2d 304
(8th Cir. 1931)
Ninth Circuit
Meadows v. Dominican
Republic, 817 F.2d 517 (9th
Cir. 1987), cert. denied, 484
U.S. 976 (1987)
Tenth Circuit
Misco Leasing, Inc. v. Vaughn,
450 F.2d 257 (10th Cir. 1971)
D.C. Circuit
Austin v. Smith,
312 F.2d 337 (D.C. Cir. 1962)

CRS-15

Acknowledged Circuit
Split on a
Controlling Issue

Subject

Circuit

Citation

Ruling

Civil Procedure

Seventh Circuit

United States v. Onamuti,
103 F.4th 1298 (7th Cir.
2024) (per curiam)

In a per curiam decision, the Seventh Circuit sided with the majority view
of a circuit split regarding the time limit for appealing a district court’s
order under a statutory provision colloquially known as the Hyde
Amendment, Pub. L. No. 105-119, Title VI, § 617, which permits criminal
defendants to recoup fees incurred in the course of defending against a
federal prosecution that was “vexatious, frivolous, or in bad faith.” Before
considering the merits of the petitioner’s challenge to the district court’s
denial of his motion for fees, the panel first considered the government’s
argument that the petitioner had not timely appealed the lower court’s
decision. The panel rejected the government’s position, and that of at least
one other circuit, that defendants have only 14 days to appeal a Hyde
Amendment order. The panel joined the majority of circuit courts that
have considered the matter and held that such appeals are subject to the
more generous 60-day civil time limit from a final judgment, rather than
the 14-day deadline for criminal appeals, because Hyde Amendment
motions are civil in nature. Finding the petitioner’s appeal was timely, the
panel nonetheless affirmed the district court’s denial of fees, though on
different grounds than the lower court.

Tenth Circuit
United States v. Robbins,
179 F.3d 1268 (10th Cir.
1999)

Civil Procedure

Seventh Circuit

Jacks v. DirectSat USA,
LLC, 118 F.4th 888 (7th
Cir. 2024)

The Seventh Circuit widened a circuit split over the standard employed
for certifying a class with respect to a particular issue raised in litigation
involving damages. Federal Rule of Civil Procedure 23(b)(3) provides a
general rule for class action certification in cases seeking damages, in which
a court may certify the class if certain criteria are met including that “the
court finds that the questions of law or fact common to class members
predominate over any questions affecting only individual members.” Rule
23(c)(4) generally permits district court certification of a class “with
respect to particular issues” in a case. The Seventh Circuit joined the
majority of reviewing circuit courts in holding that, under Rule 23(c)(4),
issue class certification in a case involving damages may occur when
common questions would predominate in resolving each of the individual
issues to be certified. The panel disagreed with the Fifth Circuit’s reading
of Rules 23(b)(3) and 23(c)(4) as together limiting issue class certification
in cases involving damages to situations when the issue class involves
common questions that predominate as to the resolution of the entire
claim, not just the individual issues for which certification is sought. (The
Seventh Circuit also noted a less significant difference in approach with the
D.C. Circuit.) While the Seventh Circuit’s interpretation of Rules 23(b)(3)
and 23(c)(4) might allow for issue class certification more often than the
minority view, the panel ultimately affirmed the lower court’s
decertification of the class in this instance.

D.C. Circuit
Harris v. Med. Transp. Mgmt.,
Inc., 77 F.4th 746 (D.C. Cir.
2023), cert. denied, 144 S. Ct.
818 (2024)

CRS-16

Fifth Circuit
Castano v. Am. Tobacco Co.,
84 F.3d 734 (5th Cir. 1996)

Subject

Circuit

Citation

Ruling

Civil Procedure

Ninth Circuit

Stein v. Kaiser Found.
Health Plan, Inc., 115
F.4th 1244 (9th Cir. 2024)
(en banc)

Sitting en banc, the Ninth Circuit overruled prior circuit precedent and
held that the False Claims Act’s (FCA’s) first-to-file rule, which bars a
private entity from either intervening in or bringing a related action based
on the facts of a pending FCA case, is not jurisdictional in nature. This
means, among other things, that a litigant who did not timely invoke the
first-to-file rule would likely forfeit the ability to raise it on appeal. The
Ninth Circuit’s decision is consistent with the position taken by four other
circuits, but splits with the Fourth, Fifth, and Tenth Circuits, which held
the rule is jurisdictional.

Acknowledged Circuit
Split on a
Controlling Issue
Fourth Circuit
United States ex rel. Carter v.
Halliburton Co., 866 F.3d 199
(4th Cir. 2017), cert. denied,
585 U.S. 1016 (2018)
Fifth Circuit
United States ex rel. Branch
Consultants v. Allstate Ins.
Co., 560 F.3d 371 (5th Cir.
2009)
Tenth Circuit
Grynberg v. Koch Gateway
Pipeline Co., 390 F.3d 1276
(10th Cir. 2004)

Civil Rights

Sixth Circuit

Ogbonna-McGruder v.
Austin Peay State Univ.,
91 F.4th 833 (6th Cir.
2024), cert. denied,
No. 23-1238 (U.S. June
24, 2024)

The Sixth Circuit held that employees asserting a violation of Title VII of
the Civil Rights Act of 1964 based on claims that they were subjected to a
hostile work environment in retaliation for filing a discrimination complaint
must show “severe or pervasive” harassment. Noting that the Sixth
Circuit has repeatedly applied this standard, the panel disagreed with the
approach taken by the Eleventh Circuit, which requires a worker to allege
only conduct that would lead a reasonable employee to be dissuaded from
filing a discrimination complaint.

Eleventh Circuit
Tonkyro v. Sec’y, Dep’t of
Veterans Aff., 995 F.3d 828
(11th Cir. 2021)

Civil Rights

Sixth Circuit

Gore v. Lee, 107 F.4th
548 (6th Cir. 2024), reh’g
en banc denied, No. 235669 (6th Cir. Nov. 20,
2024)

A divided Sixth Circuit rejected equal protection and due process
challenges to a Tennessee statute barring persons from changing the sex
identified on their birth certificate to one consistent with their gender
identity. The majority held that the law did not discriminate based on sex
because the restriction applies equally to males and females who want to
change identification records to match their gender identity. The panel
cited circuit precedent in holding that laws that discriminate based on
transgender status are not subject to heightened scrutiny because
transgender status is not a suspect class for constitutional purposes.
Applying the more forgiving rational basis standard of review, the majority
upheld the law because it was rationally related to the state’s interest in
preparing and publishing reports on vital statistics and maintaining a
consistent, biologically based definition of sex in government records. The
panel majority acknowledged a split with the Tenth Circuit, which had

Tenth Circuit
Fowler v. Stitt,
104 F.4th 770 (10th Cir.
2024), petition for cert. filed,
No. 24-801 (U.S. Jan. 23,
2025)

CRS-17

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

recently ruled that a similar Oklahoma law was unconstitutional even
under rational basis review.
Civil Rights

Ninth Circuit

Rajaram v. Meta
Platforms, Inc., 105 F.4th
1179 (9th Cir. 2024)

A divided Ninth Circuit panel held that 42 U.S.C. § 1981 prohibits
discrimination in hiring against U.S. citizens on the basis of their
citizenship. The majority therefore reversed a district court’s dismissal of
an employment discrimination action alleging that an employer
discriminated against a naturalized citizen by preferring to hire noncitizen
H-1B visa holders. The majority reasoned that the text of the statute
requires that all persons within the jurisdiction of the United States “have
the same right” to make contracts as “white citizens,” and, reading “the
same” literally, an employer preferring some subset of noncitizens would
impermissibly give those noncitizens a greater right to make contracts
than citizens. The majority acknowledged that in so holding it disagreed
with the Fifth Circuit.

Fifth Circuit
Chaiffetz v. Robertson Rsch.
Holding, Ltd., 798 F.2d 731
(5th Cir. 1986)

Civil Rights

Ninth Circuit

Doe v. Horne, 115 F.4th
1083 (9th Cir. 2024),
petition for cert. filed,
No. 24-449 (U.S. Oct. 29,
2024)

A Ninth Circuit panel upheld a lower court’s ruling granting a preliminary
injunction blocking Arizona from enforcing against the plaintiffs an Arizona
law barring transgender girls from playing on girls’ interscholastic or
intramural sports teams. The panel observed that a prior Ninth Circuit
ruling recognized that heightened constitutional scrutiny applies to laws
that discriminate based on transgender status. The court concluded that
the district court did not err in finding that Arizona failed to provide an
adequate justification for the restrictions to withstand such scrutiny. In so
doing, the circuit court recognized that the standard of scrutiny it applied
differed from the approach taken by the Sixth Circuit, which applied the
more deferential rational-basis review standard to a law prohibiting certain
medical treatments for transgender minors.

Sixth Circuit
L. W. ex rel. Williams v.
Skrmetti, 83 F.4th 460 (6th
Cir.), cert. dismissed in part,
144 S. Ct. 389 (2023), cert.
granted, 144 S. Ct. 2679
(argued Dec. 4, 2024)

Class Actions

Second Circuit

Bacher ex rel. Bacher v.
Boehringer Ingelheim
Pharms., Inc., 110 F.4th 95
(2d Cir. 2024), cert.
denied, No. 24-456 (U.S.
Jan. 27, 2025)

A divided Second Circuit rejected the defendant drug makers’ attempt to
remove plaintiffs’ personal injury suits from state court to federal court
under the Class Action Fairness Act (CAFA). CAFA generally confers
federal subject-matter jurisdiction over a civil “mass action,” which occurs
when “monetary relief claims of 100 or more persons are proposed to be
tried jointly.” CAFA provides that actions consolidated or coordinated
solely for pretrial purposes are not “mass actions.” Joining three other
circuits and splitting with the Sixth Circuit, the Second Circuit panel
majority interpreted CAFA to require a reviewing court to determine
whether the plaintiffs had intended to have a joint trial. The majority held
that the context of the plaintiffs’ request that a state court consolidate
their cases only showed that they intended pretrial consolidation, and that

Sixth Circuit
Adams v. 3M Co.,
65 F.4th 802 (6th Cir. 2023)

CRS-18

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

the action therefore did not qualify as a “mass action” removable to
federal court.
Class Actions

Eleventh Circuit

Drazen v. Pinto, 106 F.4th
1302 (11th Cir. 2024)

In a per curiam, reissued decision, the Eleventh Circuit decided what
constitutes a “coupon” for purposes of the CAFA attorney fee provisions
that apply when a class action settlement awards class members coupons
in lieu of monetary relief. The panel held that a coupon can be a voucher,
certificate, or form that may be exchanged either for a good or service or
for a discount on a good or service. The panel described its position as
aligning with the approach of the Second and Fourth Circuits, but
observed that other circuit courts had taken different views on when or
whether a voucher may constitute a coupon. Splitting with the Ninth
Circuit but joining most other reviewing courts, the Eleventh Circuit panel
also held that CAFA does not require that attorney fees for coupon
settlements be based solely on the value of redeemed coupons. Instead,
the circuit court concluded that a court may also employ the lodestar
method, calculating the time the attorney could reasonably have been
expected to work and multiplying that amount by a reasonable hourly rate.

Ninth Circuit
Feder v. Frank (In re HP Inkjet
Printer Litig.), 716 F.3d 1173
(9th Cir. 2013)

Communications

Third Circuit

Anderson v. TikTok, Inc.,
116 F.4th 180 (3d Cir.
2024)

The Third Circuit ruled that the lower court erred in dismissing a suit
brought by a parent against TikTok. The plaintiff alleged that her child died
when attempting to emulate activities shown in videos recommended to
the child via TikTok’s algorithm. The panel reversed the lower court’s
ruling that TikTok was shielded from liability by Section 230 of the
Communications Decency Act, which generally immunizes providers and
users of interactive computer services from liability for content posted by
third parties. The panel’s majority opinion observed that the Supreme
Court recently recognized in Moody v. NetChoice, LLC, 603 U.S. 707 (2024),
that a platform’s editorial judgments in compiling third-party content are
themselves expressive activity covered by the First Amendment. Applying
NetChoice, the majority reasoned that TikTok’s algorithmic
recommendations were the platform’s own expressive activity, not those
of a third party, and therefore TikTok was not shielded by Section 230
from products liability and negligence claims that were based on the
algorithm. The majority observed that its ruling may depart from preNetChoice decisions issued by other circuits that had recognized Section
230 immunity as extending to a platform’s social media recommendations.

First Circuit
Jane Doe No. 1 v.
Backpage.com, LLC,
817 F.3d 12 (1st Cir. 2016),
cert. denied, 580 U.S. 1083
(2017)
Second Circuit
Force v. Facebook, Inc.,
934 F.3d 53 (2d Cir. 2019),
cert. denied, 140 S. Ct. 276
(2020)
Third Circuit
Green v. Am. Online,
318 F.3d 465 (3d Cir. 2003),
cert. denied, 540 U.S. 877
(2003)
Fifth Circuit
Doe v. MySpace, Inc.,
528 F.3d 413 (5th Cir. 2008),

CRS-19

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue
cert. denied, 555 U.S. 1031
(2008)
Sixth Circuit
Jones v. Dirty World Ent.
Recordings LLC,
755 F.3d 398 (6th Cir. 2014)
Eighth Circuit
Johnson v. Arden,
614 F.3d 785 (8th Cir. 2010)
Ninth Circuit
Dyroff v. Ultimate Software
Grp., 934 F.3d 1093 (9th Cir.
2019), cert. denied, 140 S. Ct.
2761 (2020)
D.C. Circuit
Klayman v. Zuckerberg,
753 F.3d 1354 (D.C. Cir.
2014), cert. denied, 135 S. Ct.
680 (2014)

Communications

CRS-20

Fifth Circuit

Consumers’ Rsch. v. FCC,
109 F.4th 743 (5th Cir.
2024), cert. granted, No.
24-422 (U.S. argued Mar.
26, 2025)

A divided en banc panel of the Fifth Circuit held that the Federal
Communications Commission’s (FCC’s) funding mechanism for the
Universal Service Fund (USF) under Section 254 of the
Telecommunications Act of 1996 violates constitutional nondelegation
principles. The FCC promotes universal access to telecommunications
service via the USF, which is funded by required contributions from
covered telecommunications carriers. A private entity, the Universal
Service Administrative Company, is charged by the FCC with tasks that
include calculating the USF contribution factor. The en banc majority held
that the power to levy USF contributions is quintessentially the legislative
power to tax. The majority declined to squarely decide whether Congress
improperly delegated its taxing power to the FCC without providing the
agency with an intelligible principle to guide its discretion, or whether the
FCC impermissibly delegated this taxing power to a private entity. Instead,
the majority concluded that the combination of Congress’s broad
delegation to the FCC and the agency’s subdelegation to a private entity

Sixth Circuit
Consumers’ Rsch. v. FCC, 67
F.4th 773 (6th Cir. 2023), cert.
denied, 144 S. Ct. 2628 (2024)
Eleventh Circuit
Consumers’ Rsch., Cause
Based Com., Inc. v. FCC, 88
F.4th 917 (11th Cir. 2023),
cert. denied, 144 S. Ct. 2629
(2024)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

amounted to a constitutional violation. The majority’s decision breaks
from rulings of the Sixth and Eleventh Circuits rejecting similar
nondelegation challenges. The Supreme Court has agreed to consider the
issue in the October 2024 term in SHLB Coalition. v. Consumers’ Research,
No. 24-422.
Criminal Law &
Procedure

Criminal Law &
Procedure

Criminal Law &
Procedure

CRS-21

D.C. Circuit

First Circuit

Second Circuit

United States v. Burwell,
122 F.4th 984 (D.C. Cir.
2024)

The D.C. Circuit held that an offense under the federal bank robbery
statute, 18 U.S.C. § 2113(a) does not constitute a “crime of violence”
under 18 U.S.C. § 924(c). Section 924(c) establishes heightened penalties
for an offender who carries a firearm when committing a “crime of
violence,” which is defined to include those offenses that necessarily
involve “the use, attempted use, or threatened use of physical force.” The
D.C. Circuit held that Section 2113(a) defines a single crime that can be
committed either “by force or violence, or by intimidation . . . [or]
extortion.” Because extortion need not involve the threat or use of
physical force, the court held that Section 2113(a) did not constitute a
crime of violence. The court acknowledged disagreement with the First,
Second, and Ninth Circuits, which have read Section 2113(a) to set forth
multiple criminal offenses, including the crime of bank robbery (which
those courts recognized as a crime of violence) and the crime of extortion
(which those courts did not recognize as a crime of violence).

First Circuit
King v. United States, 965 F.3d
60 (1st Cir. 2020)

United States v. Trahan,
111 F.4th 185 (1st Cir.
2024), cert. denied, No.
24-6287 (U.S. Feb. 24,
2025)

The First Circuit affirmed the sentencing enhancement for a defendant
convicted of child pornography offenses under 18 U.S.C. § 2252A, where a
10-year mandatory minimum was imposed under Section 2252A(b)(2)
because the defendant previously had been convicted of a state offense
“relating to” child pornography. The court rejected the defendant’s
argument that his state conviction should not have triggered an
enhancement under Section 2252A because the state law defined child
pornography more broadly than federal law. Widening a circuit split, the
First Circuit joined four other courts (of six to have considered the
matter) that have held that the state child pornography offense need only
relate to, and not be a perfect match with, the federal definition of child
pornography to trigger the sentencing enhancement.

Sixth Circuit
United States v. Davis,
751 F.3d 769 (6th Cir. 2014)

United States v.
Fernandez, 104 F.4th 420
(2d Cir. 2024), petition for
cert. filed, No. 24-556
(U.S. Nov. 18, 2024)

The Second Circuit reversed a district court’s decision to grant the
appellee’s motion for compassionate release from custody. Section
3582(c)(1)(A)(i) of Title 18 of the U.S. Code authorizes the court to reduce
a federal prisoner’s term of imprisonment for “extraordinary and
compelling reasons.” The circuit panel concluded that the lower court
abused its discretion in considering the appellee’s “potential innocence”
claim because potential-innocence claims must be brought under 28 U.S.C.

First Circuit
United States v. Trenkler,
47 F.4th 42 (1st Cir. 2022)

Second Circuit
United States v. Evans, 924
F.3d 21 (2d Cir. 2019), cert.
denied, 140 S. Ct. 505 (2019)
Ninth Circuit
United States v. Watson, 881
F.3d 782 (9th Cir. 2018) (per
curiam), cert. denied, 586 U.S.
878 (2018)

Ninth Circuit
United States v. Reinhart,
893 F.3d 606 (9th Cir. 2018)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

§ 2255. The panel further concluded that the disparity between his
sentence and his codefendants was not an extraordinary or compelling
reason for a sentence reduction, because there were valid justifications for
the disparity in this case. With its decision, the Second Circuit joins the
majority of a lopsided circuit split, where only the First Circuit has
concluded that a trial court may consider nearly any claim as a possible
extraordinary and compelling reason.
Criminal Law &
Procedure

Second Circuit

United States v. Weinlein,
109 F.4th 91 (2d Cir.
2024), cert. denied,
No. 24-458 (U.S. Mar. 24,
2025)

The Second Circuit held that the Mandatory Victims Restitution Act
(MVRA), which extended the enforcement period for criminal restitution
obligations under 18 U.S.C. § 3613(b), applies to defendants whose
offenses were committed before the MVRA’s enactment and for whom
the restitution period would have expired if not for the MVRA.
Disagreeing with the Third Circuit, the panel held that retroactive
application of the MVRA would not violate the Constitution’s Ex Post
Facto Clause.

Third Circuit
United States v. Norwood,
49 F.4th 189 (3d Cir. 2022)

Criminal Law &
Procedure

Third Circuit

United States v.
D’Ambrosio, 105 F.4th
533 (3d Cir. 2024)

The Third Circuit held that, where a person properly exhausts all
challenges to the legality of a condition of supervised release, a district
court may consider legality as grounds for modification in a motion
pursuant to 18 U.S.C. § 3583(e)(2). The court acknowledged that the
Second, Fifth, Sixth, and Ninth Circuits have found that illegality does not
provide a proper ground for such a motion, while the Fourth and Seventh
Circuits have permitted challenges based on legality under certain
circumstances. The court concluded that sentencing judges who impose
conditions of supervised release must be permitted to amend those
conditions, balancing needs for finality and flexibility.

Second Circuit
United States v. Lussier,
104 F.3d 32 (2d Cir. 1997)
Fifth Circuit
United States v. Hatten,
167 F.3d 884 (5th Cir. 1999)
Sixth Circuit
United States v. Faber,
950 F.3d 356 (6th Cir. 2020);
Ninth Circuit
United States v. Gross,
307 F.3d 1043 (9th Cir. 2002)

CRS-22

Subject

Circuit

Citation

Ruling

Criminal Law &
Procedure

Third Circuit

United States v.
Rutherford, 120 F.4th 360
(3d Cir. 2024), petition for
cert. filed, No. 24-820
(U.S. Jan. 30, 2025)

The Third Circuit affirmed a lower court’s decision that a prisoner had not
shown “extraordinary and compelling reasons” to warrant a sentencing
reduction under the federal compassionate release statute. The court
acknowledged circuit splits on two legal questions relevant to its ruling.
Joining the Sixth, Seventh, Eighth, and D.C. Circuits while disagreeing with
the First, Fourth, Ninth, and Tenth Circuits, the court held that the First
Step Act’s change to the mandatory minimum applicable to the statute that
the defendant violated could not be considered as an “extraordinary and
compelling” reason supporting a sentence reduction, because Congress
expressly made the change non-retroactive. Splitting with the Eleventh
Circuit, the Third Circuit also held that an appeals court could give
retroactive effect to the U.S. Sentencing Commission’s 2023 Amended
Policy Statement, which provides that non-retroactive changes in law can
be considered an extraordinary and compelling reason to grant
compassionate release if certain conditions are met. The court
nonetheless ruled that the Amended Policy Statement did not support the
prisoner’s sentencing reduction motion because the Amended Policy
Statement was inconsistent with congressional intent expressed in the
First Step Act and did not supersede conflicting circuit caselaw.

Acknowledged Circuit
Split on a
Controlling Issue
First Circuit
United States v. Ruvalcaba,
26 F.4th 14 (1st Cir. 2022)
Fourth Circuit
United States v. McCoy,
981 F.3d 271 (4th Cir. 2020)
Ninth Circuit
United States v. Chen,
48 F.4th 1092 (9th Cir. 2022)
Tenth Circuit
United States v. McGee,
992 F.3d 1035 (10th Cir.
2021)
Eleventh Circuit
United States v. Handlon, 97
F.4th 829 (11th Cir. 2024)

Criminal Law &
Procedure

CRS-23

Fourth Circuit

United States v.
Richardson, 96 F.4th 659
(4th Cir. 2024)

The Fourth Circuit held that a federal district court has discretion to
reduce sentences for both covered and noncovered offenses under
Section 404 of the First Step Act if it concludes the sentences function as a
package. The court held that the sentencing package doctrine—which
authorizes a district court to reconsider any rulings from the initial
sentencing following a circuit court order vacating part of a sentence and
remanding the case for resentencing—applies to resentencing
determinations under the First Step Act. In so doing, the Fourth Circuit
joined the Seventh and Eighth Circuits and split with the Second, Tenth,
and Eleventh Circuits. Concluding that the district court was in the best
position to determine whether the defendant’s sentences function as a
package, the Fourth Circuit vacated and remanded the case with
instruction that the district court could apply the sentencing package
doctrine when considering whether to reduce the defendant’s sentence.

Third Circuit
United States v. Junius,
86 F.4th 1027 (3d Cir. 2023)

Acknowledged Circuit
Split on a
Controlling Issue

Subject

Circuit

Citation

Ruling

Criminal Law &
Procedure

Fourth Circuit

United States v. Sanders,
107 F.4th 234 (4th Cir.
2024)

The Fourth Circuit affirmed a defendant’s convictions and sentences for
various child pornography offenses under 18 U.S.C. §§ 2251 and 2252. The
panel rejected, among other things, the defendant’s challenge to jury
instructions on when the “lascivious exhibition” of a child’s intimate areas
qualifies as “sexually explicit conduct” for purposes of Sections 2251 and
2552. In so doing, the panel joined nine other circuits that have adopted or
endorsed the Dost factors—a multifactor test set forth by a federal district
court in United States v. Dost, 636 F. Supp. 828 (S.D. Cal. 1986)—to
determine what constitutes a “lascivious exhibition,” disagreeing with the
Seventh Circuit and D.C. Circuit, which have either discouraged the use
of, or declined to adopt, the Dost factors.

Seventh Circuit
United States v. Price,
775 F.3d 828 (7th Cir. 2014)

Criminal Law &
Procedure

Fourth Circuit

Brunson v. Stein, 116
F.4th 301 (4th Cir. 2024),
cert. denied, No. 24-597
(U.S. Feb. 24, 2025)

The Fourth Circuit widened a circuit split over whether a Heck dismissal
constitutes a “strike” under the federal in forma pauperis statute, 28
U.S.C. § 1915. Section 1915 of the Prison Litigation Reform Act 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 (strikes), including failure
to state a claim. In Heck v. Humphrey, 512 U.S. 477 (1994), the Supreme
Court held that to recover damages for an 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. The Fourth Circuit joined
several circuits in holding that a prisoner’s prior suit barred
on Heck grounds constituted a dismissal for failure to state a claim and is
therefore a strike under Section 1915. The court split with
the Second and Ninth Circuits, which have recognized that Heck dismissals
do not always constitute strikes under Section 1915.

Second Circuit
Cotton v. Noeth,
96 F.4th 249 (2d Cir. 2024)

A Fourth Circuit panel issued a ruling on when courts may defer to the
U.S. Sentencing Commission’s official commentary interpreting the U.S.
Sentencing Guidelines—a question that has not only split the federal
circuits, but also has sparked disagreement among different appellate
panels within the Fourth Circuit itself. In this case, the panel agreed with
the Third, Sixth, Ninth, and Eleventh Circuits that, following the Supreme
Court’s ruling in Kisor v. Wilkie, 588 U.S. 558 (2019), courts may defer to
the U.S. Sentencing Commission’s official commentary interpreting the
U.S. Sentencing Guidelines only after the court determines that the
relevant Guideline is genuinely ambiguous and the court has exhausted all
traditional tools of construction. The panel acknowledged a split with the
Second, Fifth, Seventh, Eighth, and Tenth Circuits, which have all held that

Second Circuit
United States v. Rainford,
110 F.4th 455 (2d Cir. 2024)

Criminal Law &
Procedure

CRS-24

Fourth Circuit

United States v. Mitchell,
120 F.4th 1233 (4th Cir.
2024)

Ninth Circuit
Washington v. L.A. Cnty.
Sheriff’s Dep’t,
833 F.3d 1048 (9th Cir. 2016)

Fifth Circuit
United States v. Vargas,
74 F.4th 673 (5th Cir. 2023),
cert. denied, 144 S. Ct. 828
(2024)

Subject

Circuit

Citation

Ruling
the Supreme Court’s pre-Kisor ruling in Stinson v. United States, 508 U.S. 36
(1993), remains controlling, under which the Commission’s official
commentary is binding unless it is plainly erroneous, inconsistent with the
Guideline provision itself, or violates the Constitution. The panel also
acknowledged an apparent conflict between prior Fourth Circuit panels,
with one panel deciding that Kisor was controlling and another panel ruling
shortly thereafter that Stinson remained dispositive. The panel here held
that, to the extent that the prior two panels were in conflict, the firstdecided case was controlling on future circuit panels.

Acknowledged Circuit
Split on a
Controlling Issue
Seventh Circuit
United States v. White,
97 F.4th 532 (7th Cir. 2024),
cert. denied, No. 24-5031 (U.S.
Oct. 7, 2024)
Eighth Circuit
United States v. Donath, 107
F.4th 830 (8th Cir. 2024), cert.
denied, No. 24-6202 (U.S Mar.
31, 2025)
Tenth Circuit
United States v. Maloid,
71 F.4th 795 (10th Cir. 2023),
cert. denied, 144 S. Ct. 1035
(2024)

Criminal Law &
Procedure

Criminal Law &
Procedure

CRS-25

Fifth Circuit

Fifth Circuit

United States v. Duffey,
92 F.4th 304 (5th Cir.
2024), cert. granted, 144 S.
Ct. 2713 (argued Jan. 13,
2025)

The Fifth Circuit widened a circuit split over the meaning of Section
403(b) of the First Step Act. Section 403(b) specifies how an amendment
made to 18 U.S.C. § 924(c) by Section 403(a) of the act applies to pending
cases for violations of 18 U.S.C. § 924(c), which in some cases enhances
the penalties for the commission of a “crime of violence” or drug
trafficking crime committed with a firearm. Section 403(b) provides that
the act’s amendments apply to a covered offense committed before the
act was enacted if the sentence for that covered offense had not been
imposed as of the date of the act’s enactment. Disagreeing with published
opinions from the Third and Ninth Circuits and joining the Sixth Circuit,
the Fifth Circuit held that Section 403(b) does not apply to the postenactment resentencing of a defendant whose pre-enactment sentence
was vacated after the First Step Act became law.

Third Circuit
United States v. Mitchell,
38 F.4th 382 (3d Cir. 2022)

United States v. Minor,
121 F.4th 1085 (5th Cir.
2024)

A divided Fifth Circuit held that the lower court inappropriately applied
the U.S. Sentencing Guidelines’ career-offender sentencing enhancement
to a criminal defendant. A defendant qualifies for a sentencing
enhancement under the Guidelines if the defendant “has at least two prior
felony convictions of ... a controlled substance offense,” and courts in the
Fifth Circuit look to the definition of “controlled substance” in the
Controlled Substances Act (CSA) to determine the offenses covered by
the enhancement. The lower court had determined the defendant was
subject to the enhancement based on three prior federal marijuana-related

Third Circuit
United States v. Lewis, 58
F.4th 764 (3d Cir.), cert.
denied, 144 S. Ct. 489 (2023)

Ninth Circuit
United States v. Merrell,
37 F.4th 571 (9th Cir. 2022)

Sixth Circuit
United States v. Clark, 46

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

offenses more than a decade earlier. In its sentencing of the defendant, the
lower court had reasoned that even if the defendant’s prior marijuana
offenses would not be considered “controlled substance” offenses after
changes made by a 2018 amendment to the CSA, those offenses would
have satisfied the CSA definition at the time of the convictions and
therefore qualified as controlled substances offenses. A majority of the
Fifth Circuit panel disagreed, holding that the sentencing court needed to
determine whether those earlier convictions would qualify as controlled
substance offenses under the CSA at the time of the defendant’s
sentencing for his most recent offense. The majority observed that its
approach was consistent with the views of several circuits, while
acknowledging that the Third, Sixth, and Eighth Circuits do not follow the
time-of-current sentencing approach.

F.4th 404 (6th Cir. 2022), cert.
denied, 144 S. Ct. 107 (2023)
Eighth Circuit
United States v. Henderson,
11 F.4th 713 (8th Cir. 2021),
cert. denied,142 S. Ct. 1696
(2022)

Criminal Law &
Procedure

Fifth Circuit

United States v.
Wilkerson, 124 F.4th 361
(5th Cir. 2024)

The Fifth Circuit affirmed a defendant’s conviction and sentence for
various child pornography offenses under 18 U.S.C. §§ 2251 and 2252A.
The panel rejected, among other things, the defendant’s argument that his
conduct did not involve the “lascivious exhibition” of a child’s intimate
areas necessary to qualify as prohibited “sexually explicit conduct” under
Sections 2251 and 2552A. In so doing, the panel joined several other
circuits in declining to adopt the D.C. Circuit’s narrower interpretation of
“lascivious exhibition,” and further held that intervening Supreme Court
caselaw had not abrogated controlling Fifth Circuit precedent.

D.C. Circuit
United States v. Hillie, 39 F.4th
674 (D.C. Cir. 2022)

Criminal Law &
Procedure

Seventh Circuit

United States v. White, 97
F.4th 532 (7th Cir. 2024),
cert. denied, No. 24-5031
(U.S. Oct. 7, 2024)

Citing circuit precedent, the Seventh Circuit held that under the Supreme
Court’s ruling in Stinson v. United States, the U.S. Sentencing Commission’s
official commentary interpreting the Sentencing Guidelines is binding,
unless it is based on a plainly erroneous reading or is inconsistent with the
relevant Sentencing Guidelines provision, or violates the Constitution. Five
other circuits have joined the Seventh Circuit in this view. An equal
number of circuits have disagreed, deciding that the Supreme Court’s
post-Stinson decision in Kisor v. Wilkie means that deference is owed to the
Commission’s commentary only when the Guideline provision the
commentary interprets is ambiguous.

Third Circuit
United States v. Nasir, 982
F.3d 144 (3d Cir. 2020) (en
banc), vacated on other grounds,
142 S. Ct. 56 (2021)
Fourth Circuit
United States v. Campbell,
22 F.4th 438 (4th Cir. 2022)
Sixth Circuit
United States v. Havis,
927 F.3d 382 (6th Cir. 2019)
(en banc) (per curiam)

CRS-26

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue
Ninth Circuit
United States v. Castillo,
69 F.4th 648 (9th Cir. 2023)
Eleventh Circuit
United States v. Dupree,
57 F.4th 1269 (11th Cir. 2023)
(en banc)
D.C. Circuit
United States v. Winstead,
890 F.3d 1082 (D.C. Cir.
2018)

Criminal Law &
Procedure

Criminal Law &
Procedure

CRS-27

Seventh Circuit

Seventh Circuit

United States v. Johnson,
104 F.4th 662 (7th Cir.
2024) (per curiam)

United States v. Ponle,
110 F.4th 958 (7th Cir.
2024)

The Seventh Circuit, in a per curiam decision, concluded that it remains
appropriate to defer to the commentary of the U.S. Sentencing Guidelines
in determining a sentence for a criminal defendant, confirming a prior
ruling that such commentary can be relied upon. The defendant argued
that the Supreme Court’s decision in Kisor v. Wilkie holding that
commentary cannot be relied upon where it is inconsistent with the
provisions of law it purports to interpret upended an earlier, general
principle that such commentary may be entitled to deference. Reaffirming
prior circuit precedent while acknowledging a growing circuit split on the
matter, the panel interpreted Kisor as merely prohibiting deference to
commentary where it violates the Constitution or federal law or is
inconsistent with, or a plainly erroneous reading of, the guideline. The
circuit panel affirmed the district court’s sentence and, in particular, its
reliance on commentary in calculating the total amount of loss attributable
to the defendant’s fraud.

Third Circuit
United States v. Nasir,
17 F.4th 459 (3d Cir. 2021)
(en banc)

Citing circuit precedent, the Seventh Circuit held that under the Supreme
Court’s ruling in Stinson v. United States, the U.S. Sentencing Commission’s
official commentary interpreting the Sentencing Guidelines is binding
unless it is based on a plainly erroneous reading, is inconsistent with the
relevant Sentencing Guidelines provision, or violates the Constitution. The
court acknowledged that, although its view is shared by at least two other
circuits, at least four circuits have decided in contrast that, under the

Third Circuit
United States v. Nasir,
982 F.3d 144 (3d Cir. 2020),
vacated on other grounds, 142 S.
Ct. 56 (2021)

Sixth Circuit
United States v. Riccardi,
989 F.3d 476 (6th Cir. 2021).
Ninth Circuit
United States v. Castillo,
69 F.4th 648 (9th Cir. 2023)
Eleventh Circuit
United States v. Dupree,
57 F.4th 1269 (11th Cir. 2023)
(en banc)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

Supreme Court’s post-Stinson decision in Kisor v. Wilkie, deference is owed
to the Commission’s commentary only when the Guideline provision
corresponding to the commentary is ambiguous.

Sixth Circuit
United States v. Riccardi,
989 F.3d 476 (6th Cir. 2021)
Ninth Circuit
United States v. Castillo,
69 F.4th 648 (9th Cir. 2023)
Eleventh Circuit
United States v. Dupree,
57 F.4th 1269 (11th Cir.
2023) (en banc)

Criminal Law &
Procedure

Seventh Circuit

Yang v. United States, 114
F.4th 899 (7th Cir. 2024),
cert. denied, No. 24-704
(U.S. Feb. 24, 2025)

The Seventh Circuit held that the procedural default rule—which generally
limits the claims that may be brought outside of trial or direct appellate
review—bars competency-based due process claims raised by a criminal
defendant for the first time in a collateral review challenge to his sentence.
The panel further held that the rule applies regardless of whether the
claims are substantive (e.g., the defendant was incompetent) or procedural
(e.g., the trial court should have held a competency hearing). The panel
observed that federal circuits have taken different views of whether the
procedural default rule applies to competency claims and, if it does,
whether it matters that the competency claim is substantive or procedural.

Fourth Circuit
United States v. Basham,
789 F.3d 358 (4th Cir. 2015),
cert. denied, 577 U.S. 1230
(2016)
Sixth Circuit
Hodges v. Colson,
727 F.3d 517 (6th Cir. 2013),
cert. denied, 575 U.S. 915
(2015)
Eighth Circuit
Lyons v. Luebbers,
403 F.3d 585 (8th Cir. 2005)
Ninth Circuit
Martinez-Villareal v. Lewis,
80 F.3d 1301 (9th Cir. 1996)
Tenth Circuit
Lay v. Royal,
860 F.3d 1307 (10th Cir.
2017), cert. denied, 584 U.S.
936 (2018)

CRS-28

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue
Eleventh Circuit
Raheem v. GDCP Warden,
995 F.3d 895 (11th Cir. 2021),
cert. denied, 142 S. Ct. 1234
(2022)

Criminal Law &
Procedure

Seventh Circuit

United States v. Porter,
114 F.4th 931 (7th Cir.
2024)

The Seventh Circuit affirmed a defendant’s conviction and sentence for
various child pornography offenses under 18 U.S.C. §§ 2251 and 2252A.
The panel rejected, among other things, the defendant’s argument that the
conduct described in his plea agreement did not involve the “lascivious
exhibition” of a child’s intimate areas qualifying as prohibited “sexually
explicit conduct” under Sections 2251 and 2552A. In so doing, the panel
joined several other circuits in declining to adopt the D.C.
Circuit’s narrower interpretation of “lascivious exhibition.”

D.C. Circuit
United States v. Hillie, 14 F.4th
677 (D.C. Cir. 2021), modified,
39 F.4th 674 (D.C. Cir. 2022)

Criminal Law &
Procedure

Eighth Circuit

United States v. Ellingburg,
113 F.4th 839 (8th Cir.
2024) (per curiam), cert.
granted, No. 24-482 (U.S.
Apr. 7, 2025)

Observing that binding circuit precedent controlled the outcome of its
decision, the Eighth Circuit held that the Mandatory Victims Restitution
Act (MVRA), which extended the enforcement period for criminal
restitution obligations under 18 U.S.C. § 3613(b), applies to defendants
whose offenses were committed before the MVRA’s enactment and for
whom the restitution period would have expired if not for the MVRA.
Disagreeing with most circuits to have considered the question, the Eighth
Circuit held that MVRA restitution is a civil remedy rather than a criminal
penalty and thus does not implicate the Constitution’s Ex Post Facto
Clause.

First Circuit
United States v. Tull-Abreu,
921 F.3d 294 (1st Cir. 2019),
cert. denied, 140 S. Ct. 424
(2019)
Second Circuit
Gonzalez v. United States,
792 F.3d 232 (2d Cir. 2015)
Third Circuit
United States v. Leahy,
438 F.3d 328 (3d Cir. 2006),
cert. denied, 549 U.S. 1071
(2006)
Fourth Circuit
United States v. Grant,
715 F.3d 552 (4th Cir. 2013)

CRS-29

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue
Fifth Circuit
United States v. Adams,
363 F.3d 363 (5th Cir. 2004)
Sixth Circuit
United States v. Sosebee,
419 F.3d 451 (6th Cir. 2005)
Ninth Circuit
United States v. Lillard,
935 F.3d 827 (9th Cir. 2019)

Criminal Law &
Procedure

Ninth Circuit

Hebrard v. Nofziger, 90
F.4th 1000 (9th Cir. 2024)

A divided Ninth Circuit affirmed a district court’s sua sponte dismissal,
pursuant to the Supreme Court’s decision in Heck v. Humphrey, of a state
prisoner’s suit under 42 U.S.C. § 1983 against prison officials for alleged
due process violations arising in a disciplinary hearing. Under Heck, a
district court must dismiss a state prisoner’s suit seeking damages under
Section 1983 if a judgment in the prisoner’s favor would necessarily imply
the invalidity of the prisoner’s conviction or sentence, unless the prisoner
had successfully challenged the sentence already in habeas proceedings.
Here, the prisoner sought expungement of his disciplinary convictions as
well as damages for the sanctions imposed by the prison official other than
the revocation of earned-time credit; he sought no relief for this last
sanction. Disagreeing with the Second Circuit’s decision in a similar case,
the Ninth Circuit majority held that the prisoner’s claim was barred by
Heck despite his decision not to directly challenge the imposition of one of
the disciplinary sanctions. The majority reasoned that the prisoner’s
request for expungement of his disciplinary convictions would necessarily
invalidate all the underlying sanctions, including the earned-time credit
sanction that lengthened his sentence, and therefore the case fell under
Heck’s scope. Because the prisoner had not brought a successful habeas
challenge first, the court held that it must dismiss the suit on its own.

Second Circuit
Peralta v. Vasquez,
467 F.3d 98 (2d Cir. 2006),
cert. denied, 551 U.S. 1145
(2007)

Criminal Law &
Procedure

Ninth Circuit

United States v. Solakyan,
119 F.4th 575 (9th Cir.
2024), petition for cert.
filed, No. 24-1066 (U.S.
Apr. 7, 2025)

The Ninth Circuit upheld a criminal defendant’s convictions for activities
arising out of a workers’ compensation fraud scheme in which patients
were routed to health care professionals who were complicit in the
scheme for unnecessary medical services. In so doing, the panel decided
that prosecution for honest-services mail fraud under 18 U.S.C. §§ 1341
and 1346, which courts have interpreted to include as an element of these
offenses a breach of a fiduciary duty, may be based on a breach of a
physician’s duty to his or her patient. Disagreeing with the Eighth Circuit,

Eighth Circuit
Miss. River Revival, Inc. v. City
of Minneapolis, 319 F.3d 1013
(8th Cir. 2003)

CRS-30

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

the panel joined the Seventh Circuit in holding that the same element is
required to prove honest-services fraud in public- and private-sector
cases. In both types of cases, the government must show a deprivation of
the intangible right to honest services; prosecutions in private-sector cases
do not require an actual or intended tangible harm to the victim.
Criminal Law &
Procedure

Criminal Law &
Procedure

Criminal Law &
Procedure

CRS-31

Eleventh Circuit

Eleventh Circuit

Eleventh Circuit

United States v.
Hernandez, 107 F.4th 965
(11th Cir. 2024)

A divided Eleventh Circuit deepened a circuit split as to when Section 403
of the First Step Act—which generally provides for reduced sentencing for
multiple “crime of violence” violations under 18 U.S.C. § 924(c)—applies
to “pending” cases—that is, cases in which the offense occurred preenactment but the sentence had not been “imposed” by the date of
enactment. The Eleventh Circuit joined the Fifth and Sixth Circuits in
holding that post-enactment vacatur of a pre-enactment sentence counts
as an “imposed” sentence, disqualifying a defendant from Section 403(b)
resentencing. The panel split with the Third and Ninth Circuits, which
have held that a defendant is eligible for Section 403(b) resentencing in
those situations. The Supreme Court agreed to review this issue in its
October 2024 term in the consolidated cases of Hewitt v. United States,
No. 23-1002, and Duffey v. United States, No. 23-1150.

Third Circuit
United States v. Mitchell,
38 F.4th 382 (3d Cir. 2022),
reh’g granted, No. 23-2356
(3rd Cir. Oct, 24, 2024)

Boyd v. Sec’y, Dep’t of
Corrs., 114 F.4th 1232
(11th Cir. 2024), petition
for cert. filed, No. 24-6486
(U.S. Jan. 31, 2025)

The Eleventh Circuit joined most circuits in recognizing that a motion to
amend a federal habeas corpus petition, or to otherwise reopen habeas
proceedings, filed after the district court has entered its final judgment and
while an appeal on that judgment remains pending should be treated as a
“second or successive” habeas application under 28 U.S.C. § 2244(b) that
may be filed only with the approval of the circuit court. The panel
disagreed with the Second and Third Circuits, which have held that the
motion to amend is not a “second or successive” habeas application in
these circumstances.

Second Circuit
Whab v. United States,
408 F.3d 116 (2d Cir. 2005)

United States v.
Armstrong, 122 F.4th
1278 (11th Cir. 2024),
reh’g en banc denied, No.
21-11252 (11th Cir. Mar.
3, 2025)

Days after the D.C. Circuit decision in United States v. Burwell, the Eleventh
Circuit issued an opinion involving the meaning of the federal bank
robbery statute. A divided Eleventh Circuit panel joined those courts that
have treated 18 U.S.C. § 2113(a) as divisible into separate offenses relating
to bank robbery and bank extortion. (The panel did not reference the
contrary position taken by the D.C. Circuit in Burwell.) The panel majority
upheld the defendant’s sentencing enhancement under 18 U.S.C. § 924(c)
for brandishing a firearm in the commission of a crime of violence after
concluding that the defendant’s multiple convictions under Section 2113(a)
met the crime-of-violence definition. The majority ruled that the
defendant’s conviction for attempted bank robbery was a crime of

Second Circuit
United States v. Stallworth,
543 F.2d 1038 (2d Cir. 1976)

Seventh Circuit
United States v. Uriarte,
975 F.3d 596 (7th Cir. 2020)
Ninth Circuit
United States v. Merrell,
37 F.4th 571 (9th Cir. 2022)

Third Circuit
United States v. Santarelli,
929 F.3d 95 (3d Cir. 2019)

Fourth Circuit
United States v. McFadden,
739 F.2d 149 (4th Cir. 1984),
cert. denied, 469 U.S. 920
(1984)

Subject

Education

CRS-32

Circuit

Eleventh Circuit

Citation

Joseph v. Bd. of Regents,
121 F.4th 855 (11th Cir.
2024), reh’g en banc
denied, No. 23-11037
(11th Cir. Apr. 8, 2025)

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

violence, joining those circuits that have read the offense to involve the
actual or threatened use of force and violence or intimidation while
attempting to take money from a bank. The majority disagreed with the
Second, Fourth, Sixth, and Ninth Circuits, which have not read Section
2113(c) to require the actual or threatened use of force to sustain a
conviction for attempted bank robbery.

Sixth Circuit
United States v. Wesley, 417
F.3d 612 (6th Cir. 2005)

In consolidated cases, the Eleventh Circuit held that Title IX of the
Education Amendments of 1972, which generally bars sex discrimination at
educational institutions receiving federal funding, does not confer on
employees an implied right to bring suit against those institutions for sex
discrimination in the workplace. The panel described its determination as
consistent with the Supreme Court’s 2001 decision in Alexander v.
Sandoval, 532 U.S. 275 (2001), which the panel characterized as
recognizing that, where Congress has not expressly created a private right
of action to enforce a federal statute, courts may only find an implied right
when congressional intent is clear. The panel found no indication that
Congress intended to create such a right. The panel noted that Title IX’s
antidiscrimination protections were focused on students, not employees,
and concluded that the statute was not intended to supplant Title VII of
the Civil Rights Act of 1964, which specifically addresses sex discrimination
in the workplace and expressly provides a private right of action to
employees. The court also reasoned that the Supreme Court’s 2005 ruling
in Jackson v. Birmingham Board of Education, 544 U.S. 167 (2005), which held
that Title IX gives rise to an implied private right of action for retaliation
when an individual complains of sex discrimination, does not extend to
nonretaliatory employment discrimination claims. The Eleventh Circuit’s
decision is generally consistent with rulings by the Fifth and Seventh
Circuits limiting the availability of employment lawsuits under Title IX, but
diverges from decisions by the First, Second, Third, Fourth, Eighth, and
Tenth Circuits that have recognized nonretaliatory employment
discrimination claims under Title IX.

First Circuit
Lipsett v. Univ. of Puerto Rico,
864 F.2d 881 (1st Cir. 1988)

Ninth Circuit
United States v. Moore, 921
F.2d 207 (9th Cir. 1990)

Second Circuit
Vengalattore v. Cornell Univ.,
36 F.4th 87 (2d Cir. 2022)
Third Circuit
Doe v. Mercy Cath. Med. Ctr.,
850 F.3d 545 (3d Cir. 2017)
Fourth Circuit
Preston v. Virginia ex rel. New
River Cmty. Coll.,
31 F.3d 203 (4th Cir. 1994)
Eighth Circuit
O’Connor v. Peru State Coll.,
781 F.2d 632 (8th Cir. 1986)
Tenth Circuit
Mabry v. State Bd. of Cmty.
Colls. & Occupational Educ.,
813 F.2d 311 (10th Cir. 1987),
cert. denied, 484 U.S. 849
(1987)

Acknowledged Circuit
Split on a
Controlling Issue

Subject

Circuit

Citation

Ruling

Election Law

Fifth Circuit

Petteway v. Galveston
Cnty., 111 F.4th 596 (5th
Cir. 2024)

A divided Fifth Circuit, sitting en banc, reversed a district court’s
determination that a Texas redistricting plan for county commission
elections diluted the voting power of Black and Hispanic voters in violation
of Section 2 of the Voting Rights Act. While neither the Black nor Hispanic
population in the county was large enough to be individually protected
under Section 2, both the district court and a three-judge Fifth Circuit
panel applied binding circuit precedent recognizing that distinct minority
groups should be aggregated for purposes of vote-dilution claims. The en
banc court joined the Sixth Circuit in holding that Section 2 does not
permit such aggregation, abrogating prior circuit precedent and disagreeing
with the contrary conclusion of the Eleventh Circuit.

Eleventh Circuit
Concerned Citizens v. Hardee
Cnty. Bd. of Comm’rs,
906 F.2d 524 (11th Cir. 1990)

Employee Benefits

Eleventh Circuit

Pizarro v. Home Depot,
Inc., 111 F.4th 1165 (11th
Cir. 2024), petition for cert.
filed, No. 24-620 (U.S.
Dec. 6, 2024)

The Eleventh Circuit affirmed the lower court’s dismissal of claims brought
by participants in a 401(k) retirement plan against the plan’s administrators
under the Employee Retirement Income Security Act of 1974 (ERISA). The
circuit panel ruled that the participants failed to show the administrator
had breached its fiduciary duty by not prudently monitoring their
investments. In so doing, the panel held that ERISA does not employ a
burden-shifting framework under which ERISA administrators must show
that plan losses were caused by something other than a breach of the
administrators’ fiduciary duty. Widening a circuit split, the panel held that
plaintiffs bear the burden of proof on all elements of their claims.

First Circuit
Brotherston v. Putnam Invs.,
LLC, 907 F.3d 17 (1st Cir.
2018), cert. denied, 140 S. Ct.
911 (2020)

A divided D.C. Circuit panel partially vacated a 2015 Environmental
Protection Agency (EPA) rule directing most states to revise their state
implementation plans (SIPs) under the Clean Air Act (CAA) so that
pollutants emitted during periods when a facility starts up, shuts down, or
malfunctions (SSM periods) would not be exempted from state emission
requirements. To begin, the circuit court held that the EPA could call for
SIP revisions if it concluded that the SIPs were substantially inadequate
under the CAA without having to first determine whether the SIPs had
adverse effects. The panel majority ruled, however, that the EPA did not
show that the CAA required states to apply uniform standards for SSM
and non-SSM emissions. The majority vacated portions of the EPA rule
directing revision of SIPs containing either automatic or discretionary
exemptions for SSM emissions or that provided an affirmative defense
under state law to a facility that failed to adhere to state emission
standards because of SSM emissions. The court upheld the rule’s direction
that states not limit state courts’ discretion to impose civil monetary
penalties on entities found to violate SIP requirements. Splitting with the

Fifth Circuit
Luminant Generation Co. v.
EPA, 714 F.3d 841 (5th Cir.
2013), cert. denied, 571 U.S.
828 (2013)

Environmental Law

CRS-33

D.C. Circuit

Env’t Comm. v. EPA, 94
F.4th 77 (D.C. Cir. 2024)

Fourth Circuit
Tatum v. RJR Pension Inv.
Comm., 761 F.3d 346 (4th Cir.
2014), cert. denied, 576 U.S.
1054 (2015)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit
Split on a
Controlling Issue

Fifth Circuit, the court held that this liability limitation conflicted with the
CAA.
Environmental Law

Fifth Circuit

Sierra Club v. La. Dep’t of
Env’t Quality, 100 F.4th
555 (5th Cir. 2024)

The Fifth Circuit upheld Louisiana’s decision to issue a pre-construction
permit for a liquid natural gas export facility, rejecting the petitioner’s
arguments that the decision was arbitrary and capricious because the
facility’s emissions would exceed national ambient air quality standards and
the permit did not require the facility to use best available control
technologies to limit emissions. In so doing, the panel widened a circuit
split on the appropriate standard of review that federal courts should
employ when reviewing state agency action. The panel joined the Third
Circuit in holding that the state agency should be afforded the same
deference they would receive under state law, expressing disagreement
with the Fourth Circuit’s application of the Administrative Procedure Act’s
arbitrary and capricious standard to state agency action.

Fourth Circuit
Appalachian Voices v. State
Water Control Bd., 912 F.3d
746 (4th Cir. 2019)

Environmental Law

Sixth Circuit

Kentucky v. EPA, 123
F.4th 447 (6th Cir. 2024),
petition for cert. filed, No.
24-961 (U.S. Mar. 6, 2025)

The Sixth Circuit vacated the EPA’s disapproval of Kentucky’s State
Implementation Plan (SIP) for meeting EPA’s air quality standards for
emissions of ozone-forming gases under the CAA. The EPA’s disapproval
of Kentucky’s SIP was part of a final rule disapproving the SIPs of 21 states.
The Sixth Circuit first considered whether it was the appropriate court to
review the challenge under the CAA’s judicial review provision. That
provision provides that a challenge to a “locally or regionally applicable”
final action by the EPA should be filed in the appropriate regional circuit,
while a challenge to a “nationally applicable” final action that may only be
reviewed in the D.C. Circuit. Joining several other courts but splitting with
the Tenth Circuit, the Sixth Circuit panel held that a challenge to the
denial of an individual SIP, even if included in a rule denying multiple SIPs,
involves a “locally or regionally applicable” final action reviewable in the
state’s regional circuit. (The Supreme Court may resolve the circuit split
over this issue later this term when it reviews the Tenth Circuit’s ruling.)
On the merits, the circuit panel concluded that the EPA acted arbitrarily
and capriciously when it denied Kentucky’s SIP using different emissions
modeling and ozone thresholds than had been used in earlier agency
guidance documents that Kentucky relied on when developing its SIP.

Tenth Circuit
Oklahoma v. EPA, 93 F.4th
1262 (10th Cir. 2024), cert.
granted, 145 S. Ct. 411 (argued
Mar. 28, 2025)

CRS-34

Acknowledged Circuit
Split on a
Controlling Issue

Subject

Circuit

Citation

Ruling

Environmental Law

Ninth Circuit

Puget Soundkeeper All. v.
Port of Tacoma, 104 F.4th
95 (9th Cir. 2024), petition
for cert. filed, No. 24-350
(U.S. Sept. 27, 2024)

The Ninth Circuit reversed a district court holding regarding the scope of
Industrial Stormwater General Permits (ISGP) issued by Washington State
pursuant to its delegated authority under the Clean Water Act (CWA).
An environmental organization alleged that a port failed to abide by the
state permitting requirements related to a cargo terminal area. Under the
federal regulations governing the National Pollutant Discharge Elimination
System (NPDES) program, a permit would not have been required for
stormwater discharges at the terminal, because that section of the port
was not involved in specific categories of operations. The state’s
permitting regulations, however, imposed more stringent requirements.
The court held that the state’s general stormwater discharge permit for
industrial facilities applies across the entirety of each covered facility,
including those portions that would not be required by the NPDES
program. Acknowledging a circuit split, the court also rejected arguments
that a citizen suit could not proceed under the CWA where the state
regulation exceeded the requirements of the federal regulations.

Second Circuit
Atl. States Legal Found. v.
Eastman Kodak,
12 F.3d 353 (2d Cir. 1993),
cert. denied, 513 U.S. 811
(1994)

Environmental Law

Tenth Circuit

Oklahoma v. EPA,
93 F.4th 1262 (10th Cir.
2024), cert. granted, 145 S.
Ct. 411 (argued Mar. 28,
2025)

The Tenth Circuit granted a motion to transfer to the D.C. Circuit
petitions challenging an EPA rule disapproving 21 SIPs under the CAA.
Acknowledging disagreement with rulings by other courts, including
published decisions by the Fourth and Sixth Circuits, the Tenth Circuit
held that EPA’s rule is a “nationally applicable” final action, rather than a
“locally or regionally applicable” final action, and therefore the CAA’s
judicial review provision permits review of the rule only in the D.C.
Circuit. Although the petitions sought review only of EPA’s disapproval of
two states’ plans, the court ruled that the nature of the agency’s action,
rather than the scope of the petitioners’ challenges, was the appropriate
basis for determining the appropriate venue. The Supreme Court has
agreed to review the case in the October 2024 term.

Fourth Circuit
West Virginia v. EPA,
90 F.4th 323 (4th Cir. 2024),
reh’g en banc denied, No. 231418 (4th Cir. Apr. 16, 2024)

The Eleventh Circu

[Text truncated at 120,000 characters. The full text is on the page linked above.]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/crs%3AR48369. Public record. Not legal advice.