The U.S. Courts of Appeals: Background and Circuit Splits from 2025

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The U.S. Courts of Appeals: Background and

Circuit Splits from 2025

Updated February 6, 2026

Congressional Research Service

https://crsreports.congress.gov

R48846

SUMMARY

The U.S. Courts of Appeals: Background and

Circuit Splits from 2025

The U.S. Courts of Appeals frequently act as the final arbiters of questions of law within their

respective jurisdictions. Although the Supreme Court of the United States sits at the pinnacle of

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, in both of its

two most recently concluded terms, the 2023 and 2024 Terms, the Court issued final decisions in

68 argued cases, 64 through signed opinions and the remainder 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.

R48846

February 6, 2026

Michael John Garcia,

Coordinator

Deputy Assistant

Director/ALD

Craig W. Canetti

Supervisory Attorney

Tamsin G. Harrington

Supervisory Attorney

This state of affairs is a product of both the design and the historical evolution of the federal

judiciary. With limited exceptions, the Supreme Court exercises wholly discretionary appellate jurisdiction, deciding for

itself which appeals it will accept out of the thousands that are submitted for its consideration each year. The federal courts of

appeals, by contrast, are statutorily obligated to accept and decide all appeals challenging a final decision of a federal trial

court, as well as certain appeals challenging non-final orders. What is more, in the absence of a binding Supreme Court

decision on an issue, each federal court of appeals is free to decide that issue independently, and its decision will then be

binding on all federal trial courts within the jurisdiction of that circuit. As a result, the federal appellate courts can, and often

do, reach different conclusions on the same issue of federal law, causing a “split” among the circuits that leads to the nonuniform 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.

The U.S. Courts of Appeals play a pivotal role in shaping federal law. Their decisions often determine how statutes and

constitutional provisions apply in practice, particularly when the Supreme Court declines review. Because these rulings bind

all district courts within a circuit and frequently diverge across circuits, they can create lasting differences in the

interpretation and application of federal law nationwide. In 2025, more than 100 circuit splits emerged or widened and

remain unresolved as of this report. Congress is constitutionally empowered to respond legislatively to many of these

decisions, and may amend to clarify statutory provisions that courts interpret differently across the country.

Congressional Research Service

The U.S. Courts of Appeals: Background and Circuit Splits from 2025

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 2025 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 2025 ................................................................................... 13

Contacts

Author Information........................................................................................................................ 70

Congressional Research Service

The U.S. Courts of Appeals: Background and Circuit Splits from 2025

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.

T

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 106 circuit splits that arose or deepened

within the federal courts of appeals in 2025, 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 Jan. 28, 2026); Cong. Rsch

Serv., Power of Congress over Territories, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/

artIV-S3-C2-3/ALDE_00013511/ (last visited Jan. 28, 2026). A full discussion of the legal bases for, functions of, and

constitutional limitations applicable to non-Article III courts is beyond the scope of this report.

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The U.S. Courts of Appeals: Background and Circuit Splits from 2025

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 In addition, 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 [https://perma.cc/U5Q6-SDHN] (last visited

Jan. 28, 2026) [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 [https://perma.cc/BW2J-Z5ZN] (last visited Jan. 28, 2026) [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 [https://perma.cc/QL5N-W5UC] (last visited Jan. 28, 2026).

8 See 28 U.S.C. § 41.

9 See “The 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, 2025, for example, approximately 12.3% of all filings in the 12 regional

U.S. Courts of Appeals involved appeals of agency administrative decisions. Federal Judicial Caseload Statistics 2025,

ADMIN. OFFICE OF THE U.S. COURTS, https://www.uscourts.gov/data-news/reports/statistical-reports/federaljudicial-caseload-statistics/federal-judicial-caseload-statistics-2025 [https://perma.cc/26VD-Z6FE] (last visited Feb. 2,

2026). About 75% of reviewed agency administrative decisions were appeals of immigration decisions by the Board of

Immigration Appeals. Id.

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The U.S. Courts of Appeals: Background and Circuit Splits from 2025

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 jurisdiction of the U.S. Court of Appeals for the

Ninth Circuit (Ninth Circuit) extends over more states and territories than any other regional

circuit court, with the Ninth Circuit 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 That limited geographic reach belies, however, 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 [https://perma.cc/R9T4-MVJ6] (last visited Jan. 28,

2026) [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/statistical(continued...)

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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 [https://perma.cc/BW2J-Z5ZN] (last visited Jan. 28, 2026).

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 2024 Term, the Court heard arguments in 73 cases,

deciding 64 through signed opinions and 4 through per curiam opinions, while in its 2023 Term,

reports/judicial-business-united-states-courts/judicial-business-2024/us-courts-appeals-judicial-business-2024

[https://perma.cc/44CJ-XKW3] (last visited Jan. 28, 2026) [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 [https://perma.cc/MY5K-7KE8] (last visited Jan. 28, 2026).

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.

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the Court heard arguments in 69 cases, again deciding 64 through signed opinions and 4 through

per curiam opinions.27 (The total number of cases filed in the Supreme Court was 3,856 in the

2024 Term and 4,223 in the 2023 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 3,369 and 3,325 precedential opinions in

FY2024 and FY2023, respectively.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

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

27 HON. JOHN G. ROBERTS, JR., 2025 YEAR END REPORT ON THE FEDERAL JUDICIARY 8 (2025), [hereinafter FEDERAL

JUDICIARY 2025 YEAR-END REPORT]; 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 [https://perma.cc/T82Z-YZTK].

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. The Court does not always issue a decision in cases after

hearing oral arguments, such as when a case is dismissed as improvidently granted or scheduled for reargument in a

later term.

28 2025 YEAR-END REPORT ON THE FEDERAL JUDICIARY, supra note 27, at 8. 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 [https://perma.cc/SAF3-RU7Q]

[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 [https://perma.cc/ES7R-J8BC] [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.

32 S. Ct. R. 10(a).

33 S. Ct. R. 10(a), (b).

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•

•

•

•

a “conflict” among two or more state courts of last resort on “an important

federal question”;34

a decision of a state court or U.S. Court of Appeals on “an important federal

question” that “conflicts with relevant decisions of” the U.S. Supreme Court;35

a decision of a state court or U.S. Court of Appeals on “an important question of

federal law” that “has not been, but should be, settled by” the U.S. Supreme

Court;36 and

a decision of a U.S. Court of Appeals that “has so far departed from the accepted

and usual course of judicial proceedings, or sanctioned such a departure by a

lower court, as to call for an exercise of” the Supreme Court’s “supervisory

power.”37

The scope of the U.S. Courts of Appeals’ mandatory appellate jurisdiction is much broader. Under

28 U.S.C. § 1291, the 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 § 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

The Federal Circuit has similar mandatory and discretionary appellate authority over final

decisions and non-final orders issued in the limited set of specialized cases over which Congress

granted it exclusive jurisdiction.43

Each final published decision of a U.S. Court of Appeals establishes binding law, or precedent,

that applies throughout that circuit, unless the decision is reviewed and overruled by the Supreme

Court or a subsequent (most likely en banc) appellate panel within that circuit, or is superseded

by a legislative change in the governing law.44 As discussed earlier, only a fraction of final

34 S. Ct. R. 10(b).

35 S. Ct. R. 10(c).

36 Id.

37 S. Ct. R. 10(a).

38 28 U.S.C. § 1291.

39 Ritzen Group, Inc. v. Jackson Masonry, LLC, 589 U.S. 35, 38 (2020) (emphasis added).

40 Id.

41 28 U.S.C. § 1292(a).

42 Id. § 1292(b).

43 See id. §§ 1292(c)–(d), 1295.

44 BRYAN GARNER ET AL., THE LAW OF JUDICIAL PRECEDENT 492–94 (2016) (discussing traditional rules for overruling

(continued...)

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decisions by the circuit courts are reviewed by the Supreme Court. In this way, the federal courts

of appeals are at the forefront of the application and interpretation of every aspect of federal law.

As one analysis observed, “Ultimately, the appellate courts ‘bear the chief responsibility for

lawmaking in the federal system’ because the Supreme Court chooses to review an ‘extremely

narrow’ band of cases.”45

The Importance of Circuit Splits in the Evolution and Application

of Federal Law

In exercising their broad mandatory and discretionary appellate jurisdiction, the U.S. Courts of

Appeals decide constitutional questions and interpret the meaning of federal statutes and their

interplay with other federal and state laws, international treaties, and the U.S. Constitution. They

also frequently interpret federal agency rules to assess whether they adhere to Congress’s

statutory directives.

One of the clearest indicators that the federal courts of appeals are grappling with an unsettled

issue of federal law is the existence of a conflict, or “split,” among the circuits. A “circuit split”

occurs when 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 A court of appeals often expressly indicates 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.47 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.48

Circuit splits can arise when the Supreme Court has not unambiguously resolved the question,

leaving the federal courts of appeals without mandatory precedent to follow.49 In the absence of a

binding Supreme Court decision on an issue, each federal court of appeals is free to decide that

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.

40(c)(2)(A) (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)

(quoting Shay Lavie, Appellate Courts and Caseload Pressure, 27 STAN. L. & POL’Y R. 57, 58 (2016).

46

Circuit Split, LEGAL INFO. INST., https://www.law.cornell.edu/wex/circuit_split [https://perma.cc/A5YD-NRNM]

(last visited Jan. 28, 2026) [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 See, e.g., United States v. Chavez, 29 F.4th 1223 (10th Cir. 2022), cert. denied, 143 S. Ct. 485 (2022).

48 Legal Info. Inst., supra note 46; Cohen & Cohen, supra note 45, at 990, 996. The non-uniform interpretation of the

law may also affect federal agencies responsible for implementing statutes and regulations subject to conflicting

judicial rulings. For further discussion, see CRS Report R47882, Agency Nonacquiescence: An Overview of

Constitutional and Practical Considerations, by Benjamin M. Barczewski (2023).

49 Manfredi, supra note 46, at 256 n.156.

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The U.S. Courts of Appeals: Background and Circuit Splits from 2025

issue independently, and that decision is then binding on all federal trial courts within the

jurisdiction of that circuit.50 What is more, all federal courts of appeals follow the “law of the

circuit doctrine.”51 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.52 If the Supreme Court decides a

legal question that was the subject of a circuit split or if Congress resolves the question through

legislation, all 13 federal courts of appeals are bound to apply those directives, ensuring

nationwide uniformity on the issue.53

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.54 Commenters have observed that

the Supreme Court appears to fill the majority of its docket—often around 70%—with cases

involving apparent conflicts.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

Supreme Court decision, the federal courts of appeals remain the final decisionmakers on many

of those questions.59

50 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”).

51 Sassman, supra note 50, at 1406.

52 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).

53 See Manfredi, supra note 46, at 256 n.156.

54 S. Ct. R. 10(a).

55 Sassman, supra note 50, at 1421. See also Stephen M. Shapiro, et al., SUPREME COURT PRACTICE §§ 4.3, 4.4 (11th ed.

2013).

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 50, at 1447–50.

58 See Sassman, supra note 50, at 1403, 1405, 1419–21.

59 See Cohen & Cohen, supra note 45, at 994–95 (noting that “the Court has left unresolved circuit splits in important

and numerous areas of federal law,” and that, “[e]ven if the Court changed course and shifted most of its focus to cases

that present circuit splits, it might be unwilling or unable to hear enough cases to meaningfully reduce the number of

circuit splits”); Sassman, supra note 50, at 1405 (“[T]he open secret is that the Supreme Court cannot possibly resolve

all of the conflicts generated by the courts of appeals.”).

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The U.S. Courts of Appeals: Background and Circuit Splits from 2025

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

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

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 Com., 854 F.3d 106, 116 (1st Cir. 2017).

66 See id. at 117 (quoting cases).

67 See, e.g., William J. Brennan, Jr., In Defense of Dissents, 50 HASTINGS L.J. 671, 674 (1999) (“In its most

straightforward incarnation, the dissent demonstrates flaws the author perceives in the majority’s legal analysis.”);

Daryl Lim, I Dissent: The Federal Circuit’s “Great Dissenter,” Her Influence on the Patent Dialogue, and Why It

Matters, 19 VAND. J. OF ENT. & TECH L. 873, 887 (2017) (“Some judges see dissenting as an obligation because

Congress makes the laws and judges interpret them. Since majority opinions may be wrong, dissents inject

accountability and thus integrity into the judicial process.”) (footnote omitted); id. at 890 (“In an appellate court like the

Federal Circuit, the dissent can tell the Supreme Court or future panels that the majority’s rule needs to be examined

carefully and should be revised or overturned.”).

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The U.S. Courts of Appeals: Background and Circuit Splits from 2025

series, published as part of the CRS Legal Sidebar product line. The Congressional Court

Watcher provides brief summaries of decisions from the 13 federal courts of appeals issued in a

particular month, focusing on cases where the controlling opinion identifies a circuit split on a

key legal issue resolved in the decision. 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

2025, 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 2025 on

Topics of Congressional Interest

Table 1 below identifies 106 appellate court decisions from 2025 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 24 topics:

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

•

Antitrust (1 case)

Arbitration (2 cases)

Bankruptcy (1 case)

Civil Procedure (11 cases)

Civil Rights (7 cases)

Criminal Law & Procedure (29 cases)

Elections (1 case)

Employee Benefits (2 case)

Environmental Law (1 case)

Firearms (8 cases)

Freedom of Information Act (1 case)

Health (2 cases)

Immigration (11 cases)

International Law (1 case)

Labor & Employment (7 cases)

Privacy (2 cases)

68 See, e.g., Oklahoma v. Env’t Prot. Agency, 605 U.S. 609 (2025) (resolving a circuit split that had widened in 2025

over the application of the Clean Air Act’s judicial review provision, which holds that challenges to certain “locally or

regionally applicable” final actions by Environmental Protection Agency should be filed in the appropriate regional

circuit, while those challenging actions based on determinations “of nationwide scope or effect” should be filed in the

D.C. Circuit); Arana v. Bd. of Regents of Univ. of Wis. Sys., No. 22-2454, 2025 WL 2726022 (7th Cir. Sept. 22, 2025)

(vacating, for rehearing en banc, a three-judge circuit panel decision which split with the Sixth, Eighth, and Ninth

Circuits on the question of when, if ever, a single incident of student-on-student harassment may give rise to Title IX

monetary liability for a school).

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The U.S. Courts of Appeals: Background and Circuit Splits from 2025

•

•

•

•

•

•

•

•

Religion (2 cases)

Securities (3 cases)

Separation of Powers (4 cases)

Speech (2 cases)

Takings (1 case)

Tax (3 cases)

Telecommunications (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 then

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.69

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, 2025, 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 2025. 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

69 The citation of the acknowledged circuit split corresponds to the citation provided by the controlling opinion

recapped in Table 1. In some cases, the controlling opinion may cite generally to a decision in which another circuit is

described as having adopted a conflicting view. In other instances, the controlling opinion may cite a specific page in

that other court’s decision where the conflicting view is expressed. This report does not attempt to assess the accuracy

of a controlling opinion’s characterization of another court’s ruling.

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The U.S. Courts of Appeals: Background and Circuit Splits from 2025

Congress’s legislative and oversight functions. The collected cases in Table 1 typically involve

(1) the interpretation or validity of a federal statute; (2) the validity or interpretation of a rule or

regulation implementing a federal statute; or (3) a constitutional issue of relevance to Congress’s

lawmaking and oversight functions. Table 1 does not attempt to identify circuit splits involving

matters that generally fall outside of Congress’s legislative purview, such as judicial doctrines not

tied to a particular federal law or program.70

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.71

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. Table 1’s inclusion of citations to referenced cases allows readers to review the

cases themselves and make an independent assessment.

70 See, e.g., Epic Games, Inc. v. Apple Inc., 161 F.4th 1162, 1179 (9th Cir. 2025) (observing circuit split over the

appropriate test for assessing attorney-client privilege claims when communications involve both business and legal

advice); United States v. Pancholi, 148 F.4th 382, 390 (6th Cir. 2025), cert. denied, No. 25-565, 2025 WL 3620412

(U.S. Dec. 15, 2025) (observing circuit split over when a willful discovery violation in a criminal trial is judicially

sanctionable).

71 See, e.g., HollyFrontier Cheyenne Ref., LLC v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus.

& Serv. Workers Int'l Union Loc. 11-574, 132 F.4th 1184, 1190 (10th Cir. 2025) (ruling that the arbitrator exceeded the

scope of authority by deciding an issue not submitted for arbitration, rejecting the dissent’s view that the decision failed

to afford adequate deference to the arbitrator’s judgment and conflicted with the prevailing authority in other circuits,

and asserting that each case cited by the dissent “is either inapposite, distinguishable, or less deferential to the

arbitrator’s authority than the dissent claims”).

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Table 1. Circuit Splits Recognized in 2025

Subject

Circuit

Citation

Ruling

Antitrust

Ninth Circuit

L.V. Sun, Inc. v.

Adelson, 147 F.4th

1103 (9th Cir. 2025)

petition for cert. filed,

No. 25-697 (U.S. Dec.

16, 2025)

The Ninth Circuit ruled that a joint operating arrangement

(JOA) between two newspaper owners was unenforceable

because it lacked the Attorney General’s approval, as required

by Section 4(b) of the Newspaper Preservation Act (NPA). The

NPA provides a limited exemption from antitrust laws for

economically distressed competing newspapers that enter

JOAs—provided they obtain prior written consent from the

Attorney General. A lower court had accepted the Department

of Justice’s (DOJ’s) interpretation that such consent was not a

prerequisite to forming a JOA, but only to qualifying for the

exemption. The Ninth Circuit rejected that view, holding that

the statute’s plain language mandates Attorney General

approval for a JOA to be lawful. This interpretation conflicts

with decisions from the D.C. and Sixth Circuits, which upheld

DOJ’s position.

D.C. Circuit

Newspaper Guild v. Levi,

539 F.2d 755, 760–61 (D.C.

Cir. 1976)

Amaplat Mauritius Ltd.

v. Zimbabwe Mining

Dev. Corp., 143 F.4th

496 (D.C. Cir. 2025)

The D.C. Circuit held that the Foreign Sovereign Immunities

Act (FSIA) barred consideration of Mauritian mining companies’

attempt to seek recognition of a foreign judgment confirming an

arbitral award against the Republic of Zimbabwe and related

entities. The panel held that the FSIA’s exception allowing

confirmation of arbitration awards did not apply, because the

plaintiffs were seeking not direct confirmation of an award

(which would have been time-barred under U.S. law) but

conversion of a foreign judgment into a domestic judgment,

which the panel ruled to fall outside the exception. The panel

also decided that the FSIA’s exception when a foreign state has

waived immunity by implication did not apply. The panel held

that Zimbabwe’s signing of the New York Convention on the

Recognition and Enforcement of Foreign Arbitral Awards, and

its later entry into an agreement to arbitrate in a signatory

state, did not demonstrate an intent to waive immunity from

foreign judgment recognition actions. The D.C. Circuit parted

ways on this holding with the Second Circuit, which construed

a foreign state’s signing of the New York Convention and

agreement to arbitrate in a signatory state as constituting an

implied waiver for judgment recognition actions related to

arbitration.

Second Circuit

Seetransport Wiking

Trader

Schiffarhtsgesellschaft MBH

& Co.,

Kommanditgesellschaft v.

Navimpex Centrala Navala,

989 F.2d 572, 578–79 (2d

Cir.), as amended (May 25,

1993)

Arbitration

CRS-13

Acknowledged Circuit

Split on a

Controlling Issue

D.C. Circuit

Sixth Circuit

Taft Broad. Co. v. United

States, 929 F.2d 240 (6th

Cir. 1991)

Subject

Circuit

Citation

Ruling

Arbitration

Fifth Circuit

Sullivan v. Feldman,

132 F.4th 315 (5th Cir.

2025), cert. denied,

No. 25-240, 2026 WL

79907 (U.S. Jan. 12,

2026)

In a dispute between doctors and a law firm on insurance

matters, a Fifth Circuit panel affirmed in part and vacated in

part a district court’s confirmation of awards relating to four

arbitrations between the parties. One of the four arbitration

confirmations reviewed by the Fifth Circuit involved a class

arbitration. The Fifth Circuit panel observed that parties must

provide clear consent for an arbitrator to decide questions of

class arbitrability. In this case, the arbitration agreement

incorporated a generic rule that delegated questions of

arbitrability to the arbitrator. Applying circuit precedent, the

panel recognized that the arbitration agreement’s incorporation

of such a rule constituted clear consent to delegate questions

of class arbitrability to the arbitrator. The panel observed a split

with the Third, Fourth, Sixth, and Eighth Circuits, which have

held that incorporation of a generic rule does not constitute

clear consent to delegate questions of class arbitrability. The

panel also suggested the deferential standard employed by the

Fifth Circuit might be an outlier even among those circuits that

have recognized that an agreement’s reference to generic rules

may constitute clear consent to delegate the question of class

arbitrability to an arbitrator.

Third Circuit

Chesapeake Appalachia,

LLC v. Scout Petroleum,

LLC, 809 F.3d 746 (3d Cir.

2016)

In partially affirming a federal magistrate judge’s order in an

appeal of a bankruptcy court decision, the Third Circuit

rejected a challenge to the magistrate’s jurisdiction over the

appeal. A federal bankruptcy court is a unit of a federal district

court, and under 28 U.S.C. § 158, a bankruptcy court’s final

judgments and orders generally may be appealed to federal

district court. The Third Circuit held that the Federal

Magistrate Act of 1979 (FMA) authorized a federal magistrate

judge, upon the consent of the parties and referral by a federal

district court, to enter final judgment in a bankruptcy appeal.

The court parted ways from the Seventh and Tenth Circuits,

which have not construed the FMA as conferring to the district

courts the specific power to refer bankruptcy appeals to

magistrates. On the merits, the court affirmed the magistrate

judge’s order on certain claims and remanded other claims for

further proceedings.

Seventh Circuit

In re Elcona Homes Corp.,

810 F.2d 136, 137 (7th Cir.

1987)

Bankruptcy

CRS-14

Acknowledged Circuit

Split on a

Controlling Issue

Third Circuit

In re MTE Holdings

LLC, 136 F.4th 506 (3d

Cir. 2025)

Fourth Circuit

Del Webb Communities,

Inc. v. Carlson, 817 F.3d

867, 876–77 (4th Cir. 2016)

Sixth Circuit

Reed Elsevier, Inc. ex rel.

LexisNexis Div. v.

Crockett, 734 F.3d 594,

599–600 (6th Cir. 2013)

Eighth Circuit

Catamaran Corp. v.

Towncrest Pharmacy, 864

F.3d 966, 972–73 (8th Cir.

2017)

Tenth Circuit

Va. Beach Fed. Savings &

Loan Ass’n v. Wood, 901

F.2d 849, 850 (10th Cir.

1990) (per curiam)

CRS-15

Subject

Circuit

Civil Procedure

D.C. Circuit

Citation

Levin in re Levin v.

Wells Fargo Bank,

156 F.4th 632 (D.C.

Cir. 2025)

Ruling

The D.C. Circuit reversed a trial court’s ruling that creditors

with terrorism-related judgments against Iran could not attach

funds blocked under the International Emergency Economic

Powers Act (IEEPA) because (1) the funds remained immunized

from attachment under the Foreign Sovereign Immunities Act

(FSIA) and (2) the U.S. government already had commenced a

civil forfeiture action against those same funds. As to the FSIA,

the D.C. Circuit held that the funds met the statutory definition

of “blocked assets” under the Terrorism Risk Insurance Act of

2002, which creates an exemption to foreign sovereign

immunity when a party that has obtained a terrorism-based

judgment against a designated state sponsor of terrorism seeks

to attach assets “seized or frozen by the United States” under

IEEPA or the Trading with the Enemy Act. The court of appeals

rejected the trial court’s ruling that the funds had lost their

“blocked” status because the Office of Foreign Assets Control

(OFAC) had issued a forfeiture “license” to the government.

The D.C. Circuit held that the license simply permitted

forfeiture proceedings to begin but did not “unfreeze” the

funds, in contrast to the holdings of other courts, including the

Seventh Circuit, that such assets are unblocked once licensed

by OFAC. Turning to the trial court’s alternative basis for

quashing the creditors’ attachment motions, the D.C. Circuit

held that the federal government’s prior commencement of a

civil forfeiture proceeding against the funds did not preclude the

attachment actions under the prior exclusive jurisdiction

doctrine. The court of appeals explained that this doctrine

dictates that “only one court at a time may exercise jurisdiction

over particular property,” and thus the doctrine did not apply

in this case because both the forfeiture and attachment actions

had been filed in the same court. Recognizing that its holding

might reduce forfeited assets available for deposit into the U.S.

Victims of State Sponsored Terrorism Fund, the D.C. Circuit

observed that this is a situation for Congress to address, not

the courts, as it arose from an “anomaly in the interaction” of

two federal statutes.

Acknowledged Circuit

Split on a

Controlling Issue

Seventh Circuit

United States v. All Funds

on Deposit With RJ

O’Brien & Assoc., 783 F.3d

607 (7th Cir. 2015).

Subject

Circuit

Citation

Ruling

Civil Procedure

Fourth Circuit

In re Banco Mercantil

del Norte, S.A., 126

F.4th 926 (4th Cir.

2025)

The Fourth Circuit affirmed a lower court’s approval of a

Mexican bank’s application to conduct discovery on another

Mexican bank’s American subsidiary in connection to ongoing

Mexican civil proceedings. Under 28 U.S.C. § 1782(a), a federal

district court may compel a person within the district to give

testimony or other evidence “for use in a proceeding in a

foreign or international tribunal.” In deciding that the lower

court had not abused its discretion in granting the application

for discovery, the Fourth Circuit panel widened a circuit split

over the appropriate standard for evaluating arguments that

requested material is shielded from discovery under the laws of

the foreign tribunal. The panel joined those circuits that have

decided that a party asserting a foreign law privilege bears the

burden of establishing that privilege, and the panel upheld the

lower court’s decision that the American subsidiary had not

met this burden. The panel declined to adopt the approach of

the First, Seventh, and Eleventh Circuits, which do not impose

an evidentiary burden on the moving party to show that the

privilege exists and instead leave it to the discretion of the

reviewing court to determine whether a privilege applies based

on available evidence.

First Circuit

In re Schlich, 893 F.3d 40,

50 (1st Cir. 2018)

The Fourth Circuit affirmed a district court’s award of attorney

fees to plaintiffs after the defendants improperly removed their

state court lawsuit to federal court for a second time. The

circuit panel, however, rejected the plaintiffs’ request for the

appeals court to award additional fees to offset the costs of

defending the district court’s fee award on appeal. The panel

held that although the text of 28 U.S.C. § 1447(c) permits

awarding attorney fees as part of an order remanding the case

to state court, such an order can be issued only by a district

court, not an appeals court. The panel split with the Seventh

Circuit, which has interpreted Section 1447(c) as calling for

automatic attorney fees when a party successfully defends on

appeal a district court’s fee award.

Seventh Circuit

PNC Bank, N.A. v. Spencer,

763 F.3d 650, 655 (7th Cir.

2014)

Civil Procedure

CRS-16

Acknowledged Circuit

Split on a

Controlling Issue

Fourth Circuit

Black v. Mantei &

Assoc., Ltd., 145 F.4th

528 (4th Cir. 2025)

Seventh Circuit

In re Application of

Venequip, S.A., 83 F.4th

1048, 1058 (7th Cir. 2023)

Eleventh Circuit

Dep’t of Caldas v. Diageo

PLC, 925 F.3d 1218, 1223

(11th Cir. 2019)

CRS-17

Acknowledged Circuit

Split on a

Controlling Issue

Subject

Circuit

Citation

Ruling

Civil Procedure

Fourth Circuit

Holmes v. Elephant Ins.

Co., 156 F.4th 413 (4th

Cir. 2025)

The Fourth Circuit partially reversed a lower court’s ruling that

plaintiffs in a putative class action lacked standing to sue an

insurance company after hackers obtained their driver’s license

numbers in a data breach. The plaintiffs raised various civil

claims relating to the data breach, including under the Driver’s

Privacy Protection Act. The panel agreed with the lower court

that the mere acquisition of the license numbers by hackers did

not constitute a concrete injury sufficient to establish standing

under Article III of the Constitution. Still, the court held that a

subset of the plaintiffs had alleged a concrete injury from their

hacked license numbers being posted on the dark web. In

reaching this conclusion, the court applied the Supreme Court’s

holding in TransUnion LLC v. Ramirez that when a federal statute

provides a cause of action for a violation of federal law, a

plaintiff must demonstrate a “concrete harm” closely related to

a harm traditionally recognized in American law. Diverging from

the Seventh Circuit’s conclusion in a similar case, the Fourth

Circuit found that the harm from having driver’s license

numbers listed on the dark web was analogous to the tort of

public disclosure of private information, and thus satisfied the

standing requirement.

Seventh Circuit

Baysal v. Midvale Indemnity

Co., 78 F.4th 976, 979 (7th

Cir. 2023)

Civil Procedure

Fifth Circuit

Wilson v. Centene

Mgmt. Co., 144 F.4th

780 (5th Cir. 2025)

The Fifth Circuit remanded a case to the district court for

reconsideration of its denial of class certification, where the

lower court ruled that the plaintiffs lacked standing due to a

failure to establish an injury in fact. The circuit panel held that

the district court erred by prematurely engaging in a meritsbased evaluation of the plaintiffs’ expert testimony to determine

standing. The panel directed lower courts considering motions

for class certification to evaluate only the individual standing of

the named plaintiffs before turning to whether to certify a class

in order to separate standing’s injury-in-fact inquiry from a

merits-based inquiry. While stating that its approach tracked

with that taken by many circuits, the panel observed a split with

the Second and Eleventh Circuits, which consider as part of the

standing analysis not only whether the named plaintiffs suffered

a cognizable injury due to the defendant’s alleged conduct, but

also whether that conduct implicates the same concerns as the

conduct alleged to have injured unnamed members of the

putative class.

Second Circuit

Amara v. CIGNA Corp.,

775 F.3d 510, 129 (2d Cir.

2014)

Eleventh Circuit

Fox v. Ritz-Carlton Hotel

Co., LLC, 977 F.3d 1039,

1047 (11th Cir. 2020)

Subject

Circuit

Citation

Ruling

Civil Procedure

Sixth Circuit

Tobien v. Nationwide

Gen. Ins. Co., 133

F.4th 613 (6th Cir.

2025), cert. denied,

No. 25-439, 2026 WL

135652 (U.S. Jan. 20,

2026)

The Sixth Circuit widened a circuit split over who bears the

burden of proof when a defendant moves to dismiss a civil suit

on the grounds that it was brought in an improper venue. In

this case, the plaintiff claimed that venue was proper under 28

U.S.C. § 1391(b)(2), which permits a federal civil suit to be filed

in the federal district where a substantial portion of the

activities giving rise to the suit have occurred. In reviewing the

defendant’s motion to dismiss for improper venue, the Sixth

Circuit joined the First, Second, and Fourth Circuits in holding

that the plaintiff bears the burden of proving by a

preponderance of evidence that venue is proper. Applying this

standard, the Sixth Circuit upheld the lower court’s conclusion

that plaintiff’s suit was filed in an improper venue because the

plaintiff failed to show a substantial portion of activities giving

rise to the suit occurred in the judicial district where the suit

was filed. The court expressed disagreement with the Third

Circuit, which held that the burden rests with the defendant to

prove venue is improper, and the court also suggested a

potential conflict with the Eighth Circuit on similar grounds.

The panel also cited two cases from the Seventh Circuit that

took different sides in the split in interpreting different venue

statutes.

Third Circuit

Myers v. Am. Dental Ass’n,

695 F.2d 716, 724 (3d Cir.

1982)

The Sixth Circuit widened a circuit split on whether a district

court must exercise jurisdiction over a “mixed” legal action

that seeks both coercive relief (i.e., damages or requiring or

precluding specific action from another party) and declaratory

relief (i.e., clarification of a party’s legal rights). Where federal

courts have subject matter jurisdiction over coercive claims,

they must exercise jurisdiction unless a traditional abstention

doctrine applies. Under 28 U.S.C. § 2201(a), courts have

greater discretion to decline to exercise jurisdiction over claims

seeking declaratory relief. The circuit panel held that, in a mixed

legal action, the district court must generally exercise

jurisdiction over the coercive claim but may still decline to

exercise jurisdiction over the declaratory claim. However, the

panel continued that it would likely be an abuse of discretion

for a district court to decline to exercise jurisdiction over a

declaratory claim involving the same legal issue as the coercive

claim. The panel described its approach as similar to that taken

by the First Circuit but differing from (1) the Second, Fourth,

and Fifth Circuits, which recognize that a district court

Second Circuit

Village of Westfield v.

Welch’s, 170 F.3d 116, 124

n.5 (2d Cir. 1999)

Civil Procedure

CRS-18

Acknowledged Circuit

Split on a

Controlling Issue

Sixth Circuit

Fire-Dex, LLC v.

Admiral Ins. Co., 139

F.4th 519 (6th Cir.

2025)

Seventh Circuit

In re Peachtree Lane

Assocs., Ltd., 150 F.3d 788

(7th Cir. 1998) (identified

by the Sixth Circuit as

taking opposing view); but

see Grantham v. ChallengeCook Bros., 420 F.2d 1182

(7th Cir. 1969) (identified

by the Sixth Circuit as

aligning with its view)

Eighth Circuit

United States v. Orshek,

164 F.2d 741, 742 (8th Cir.

1947)

Third Circuit

Rarick v. Federated Serv.

Ins. Co., 852 F.3d 223, 229

(3d Cir. 2017)

Fourth Circuit

VonRosenberg v. Lawrence,

781 F.3d 731, 735 (4th

Cir.), as amended (Apr. 17,

2015)

Fifth Circuit

New England Ins. Co. v.

Subject

Circuit

Citation

Ruling

generally must exercise jurisdiction over the entire mixed legal

action as a whole, so long as the coercive claim is not frivolous

and a traditional abstention doctrine does not apply; (2) the

Third, Seventh, and Ninth Circuits, which hold that a court may

decline to exercise jurisdiction over an entire mixed action

when the coercive claim is “dependent” on the declaratory

claim; and (3) the Eighth Circuit, which applies either the more

or less permissive standard depending on whether the “essence

of the suit” involves the declaratory claim or the coercive claim.

Acknowledged Circuit

Split on a

Controlling Issue

Barnett, 561 F.3d 392, 395

(5th Cir. 2009)

Seventh Circuit

R.R. St. & Co. v. Vulcan

Materials Co., 569 F.3d

711, 716 (7th Cir. 2009)

Eighth Circuit

Royal Indem. Co. v. Apex

Oil Co., 511 F.3d 788, 793

(8th Cir. 2008)

Ninth Circuit

United Nat. Ins. Co. v. R&D

Latex Corp., 242 F.3d 1102,

1113 (9th Cir. 2001)

Civil Procedure

CRS-19

Sixth Circuit

Zai v. Nat’l Credit

Union Admin. Bd., 149

F.4th 837 (6th Cir.

2025)

The Sixth Circuit vacated and remanded a district court’s

judgment dismissing for lack of jurisdiction a breach of

settlement claim against the National Credit Union

Administration Board. The Board had entered into the

settlement in its capacity as the liquidating agent of an insolvent

credit union. The district court had found that a provision of

the Federal Credit Union Act—12 U.S.C. § 1787(b)(13)(D)—

stripped the court of jurisdiction for claims against the Board as

a credit union liquidator. In interpreting the jurisdictional

provision, the panel looked to cases addressing a “materially

identical” provision in the Financial Institutions Reform,

Recovery and Enforcement Act (FIRREA). The First, Fifth,

Ninth, and Eleventh Circuits and an earlier Sixth Circuit panel

decision had interpreted the jurisdiction stripping provision in

FIRREA in tandem with its administrative exhaustion provision

to provide that only claims that could have been brought

against the Board administratively during the liquidation process

are barred from court. The Sixth Circuit panel in this case

applied the same logic to the identical provision in the Federal

Credit Union Act and found that the claims were not timebarred and could proceed. Next the panel examined the

conclusion of those same circuit decisions that, although these

First Circuit

Heno v. FDIC, 20 F.3d

1204, 1209 (1st Cir. 1994)

Fifth Circuit

FDIC v. Scott, 125 F.3d

254, 259 (6th Cir. 1997)

Ninth Circuit

McCarthy v. FDIC, 348

F.3d 1075, 1081 (9th Cir.

2003)

Eleventh Circuit

Stamm v. Paul, 121 F.3d

635, 641 (11th Cir. 1987)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

“late-arising claims” are not time-barred, they must still exhaust

their administrative remedies before bringing their claims in

district court—finding instead that claims arising after the

conclusion of the administrative review process under both

statutes are not “claims” within the meaning of the statutes and

therefore do not need to be exhausted prior to district court

review.

Civil Procedure

Sixth Circuit

Clippinger v. State

Farm Auto. Ins. Co.,

156 F.4th 724 (6th Cir.

2025)

A divided Sixth Circuit upheld a lower court’s certification of a

class action against an automobile insurer accused of wrongly

reducing the valuations of customers’ vehicles that were totaled

in accidents, allegedly in breach of contracts with its customers

and in violation of state law. The issue before the court was

whether the plaintiffs satisfied the class certification

requirements of Federal Rule of Civil Procedure 23. In allowing

the class action to proceed, the panel majority identified two

circuit splits. First, the court joined circuits that have held that

an alleged breach of contract constitutes an injury-in-fact

sufficient for Article III standing, disagreeing with the Seventh

Circuit and other courts that require a tangible harm to result

from the breach. Second, the panel majority found no abuse of

discretion in the lower court’s conclusion that questions of law

and fact common to the class members relating to the valuation

methodology used by the automobile insurer predominated

over questions specific to individual class members (as required

for class certification under Rule 23). The majority identified

the Third, Fourth, Fifth, Seventh, and Ninth Circuits as having

declined to certify similar insurance valuation class actions,

describing those courts as reasoning that individualized damages

calculations for each plaintiff predominated over common

questions of law or fact.

Third Circuit

Lewis v. Gov’t Emps. Ins.

Co., 98 F.4th 452 (3d Cir.

2024)

Fourth Circuit

Freeman v. Progressive

Direct Ins. Co., 149 F.4th

461 (4th Cir. 2025)

Fifth Circuit

Sampson v. United Servs.

Auto. Ass’n, 83 F.4th 414

(5th Cir. 2023)

Seventh Circuit

Dinerstein v. Google, LLC,

73 F.4th 502, 518–20 (7th

Cir. 2023)

Schroeder v. Progressive

Paloverde Ins. Co., 146

F.4th 567 (7th Cir. 2025)

Ninth Circuit

Lara v. First Nat’l Ins. Co.

of Am., 25 F.4th 1134, 1140

(9th Cir. 2022)

CRS-20

CRS-21

Acknowledged Circuit

Split on a

Controlling Issue

Subject

Circuit

Citation

Ruling

Civil Procedure

Ninth Circuit

Harrison ex rel.

California v. Express

Scripts, Inc., 154 F.4th

1069 (9th Cir. 2025)

In a dispute over application of the federal officer removal

statute, the Ninth Circuit held that a federal district court’s

remand of a case to state court is not automatically stayed

while the defendant appeals the remand order. Under 28 U.S.C.

§ 1442, a suit brought in a state tribunal may be removed to

federal court if it relates to a private person’s assistance to

federal officers in the performance of their official duties. In this

case, the federal district court concluded that the defendant

had not satisfied the criteria for removal, ordered remand of

the suit to state court, and denied the defendant’s request that

the court stay its remand order pending appeal. The Ninth

Circuit held that the district court appropriately exercised its

discretion when denying the stay request. The panel rejected

the defendant’s argument that the Supreme Court’s decision in

Coinbase, Inc. v. Bielski, which mandates automatic stays for

interlocutory appeals of arbitration denials, should apply in the

federal officer removal context. The panel characterized its

ruling as consistent with decisions of all reviewing courts

except the Fourth Circuit, which has extended Coinbase’s

analysis to federal officer removal cases.

Fourth Circuit

City of Martinsville v.

Express Scripts, Inc., 128

F.4th 265 (4th Cir. 2025)

Civil Procedure

Ninth Circuit

Rosenwald v.

Kimberly-Clark Corp.,

152 F.4th 1167 (9th

Cir. 2025)

The Ninth Circuit ordered a district court to dismiss without

prejudice plaintiffs’ complaints against the manufacturer of

Kleenex wipes for lack of subject matter jurisdiction. The panel

explained that to establish subject matter jurisdiction in this

case, the plaintiffs needed to show both diversity of citizenship

and a requisite dollar amount in controversy under 28 U.S.C.

§ 1332, and observed that plaintiffs had failed to establish the

citizenship of the defendant in their complaint. Agreeing with

the Tenth Circuit, the panel decided that diversity of citizenship

could not be established by the court through judicial notice

because the burden of pleading and proving jurisdiction is with

the party seeking the exercise of the court’s jurisdiction. On

this issue, the panel explicitly disagreed with the Fifth Circuit

and noted that the Second and Third Circuits had issued

decisions in which they had taken judicial notice of a party’s

citizenship without explanation. To correct the deficiency, the

court permitted plaintiffs to file an amended complaint directly

with the appeals court, which the panel found adequately

demonstrated diversity of citizenship. It concluded, however,

that the amended complaint failed to establish the other

element of Section 1332—the threshold dollar amount in

Fifth Circuit

Swindol v. Aurora Flight

Scis. Corp., 805 F.3d 516,

519 (5th Cir. 2015), certified

question answered, 194 So.

3d 847 (Miss. 2016)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

controversy—and therefore remanded to the district court for

dismissal for lack of subject matter jurisdiction.

CRS-22

Civil Rights

D.C. Circuit

Joyner v. Morrison &

Foerster LLP, 140 F.4th

523 (D.C. Cir. 2025)

The D.C. Circuit affirmed a federal district court’s dismissal of

claims of racial discrimination and a hostile work environment

brought by an employee under 42 U.S.C. § 1981 and Title VII of

the Civil Rights Act of 1964. The panel concluded that the

employee had not sufficiently alleged disparate treatment due

to his race, where he merely stated that White workers

received better work assignments and did not describe those

workers’ assignments, experience, or qualifications to permit an

inference that they were similarly situated except for their race.

The panel noted disagreement with the Seventh Circuit, which

the panel described as allowing a claim of racial discrimination

based on an allegation of different treatment due to race,

without also having to plead specific facts in support.

Seventh Circuit

Thomas v. JBS Green Bay,

Inc., 120 F.4th 1335, 1337–

38 (7th Cir. 2024)

Civil Rights

First Circuit

Garcia-Gesualdo v.

Honeywell Aerospace,

Inc., 135 F.4th 10 (1st

Cir. 2025)

The First Circuit issued an opinion on the notice procedures

that the Equal Employment Opportunity Commission (EEOC)

must follow when informing an employee of his or her right to

sue under Title VII of the Civil Rights Act of 1964 and the

Americans with Disabilities Act. An employee generally must

file suit under either statute within a 90-day period that begins

after the employee has exhausted administrative remedies and

received notice from the EEOC that the 90-day period has

begun. Here, the EEOC had sent the employee emails with a

hyperlink to his EEOC docket and notice that an “important

document” had been added; the linked document explained that

the employee had 90 days to file suit. Splitting with the Eighth

Circuit, the court held this notice method inadequate. The First

Circuit stated that for electronic notice to be adequate when

the right-to-sue letter is not attached to the email, the email

must unambiguously indicate that the recipient has 90 days to

bring suit.

Eighth Circuit

McDonald v. St. Louis

Univ., 109 F.4th 1068, 1071

(8th Cir. 2024)

Civil Rights

Second Circuit

In re AAM Holding

Corp., 153 F.4th 252

(2d Cir. 2025)

The Second Circuit upheld a lower court’s order enforcing an

Equal Employment Opportunity Commission (EEOC) subpoena

for an investigation under Title VII of the Civil Rights Act of

1964 (Title VII). Title VII authorizes an aggrieved party to file a

charge with the EEOC, which the agency must promptly

investigate. If the EEOC either dismisses the charge or does not

act within a statutory deadline, it must issue a right-to-sue

letter upon request. The aggrieved party then has 90 days to

Fifth Circuit

EEOC v. Hearst Corp., 103

F.3d 462, 468–69 (5th Cir.

1997)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

file suit. In a decision that diverges from the Fifth Circuit, the

Second Circuit held that the EEOC keeps its investigative

authority even after it issues a right-to-sue letter and a lawsuit

is filed.

CRS-23

Civil Rights

Fourth Circuit

Brown v. Stapleton,

142 F.4th 252 (4th Cir.

2025)

The Fourth Circuit vacated and remanded a district court’s

dismissal of an inmate’s 42 U.S.C. § 1983 due process claim.

The inmate argued that state prison officials violated his

Fourteenth Amendment right to due process of law when they

deducted money from his prison trust account as a fine without

permitting him to present evidence at a hearing. Allowing the

inmate’s claim to proceed, the panel declined to apply the

Supreme Court’s analysis in Sandin v. Conner that deprivation of

an inmate’s liberty interests must pose “atypical and significant

hardship” on the inmate to implicate the Due Process Clause.

The panel noted Sandin’s focus on the deprivation of liberty

interests, such as the use of solitary confinement, which it

found distinguishable from an inmate’s statutorily created

property interests in his prison trust account. In limiting

Sandin’s applicability to liberty interests, the Fourth Circuit

panel stated that it was joining the Second and Fifth Circuits

and splitting with the Tenth Circuit, which had explicitly applied

the Sandin analysis to property interests.

Tenth Circuit

Cosco v. Uphoff, 195 F.3d

1221, 1222 (10th Cir. 1999)

(per curiam)

Civil Rights

Sixth Circuit

Bivens v. Zep, Inc., 147

F.4th 635 (6th Cir.

2025)

The Sixth Circuit upheld a lower court’s dismissal of a sales

representative’s hostile work environment claims under Title

VII of the Civil Rights Act of 1964 (Title VII). The panel

concluded, among other things, that the employer could not be

liable when a client harassed the representative. According to

the panel, for an employer to be liable for third-party

harassment, the plaintiff must demonstrate that the employer

intended for the harassment to happen—something that was

not established in this case. The panel noted that its

interpretation aligns with the Seventh Circuit but diverges from

the position of the EEOC and the First, Second, Eighth, Ninth,

Tenth, and Eleventh Circuits. These jurisdictions apply a

negligence standard, holding an employer liable if it knew or

should have known about the harassment and failed to take

prompt corrective action.

First Circuit

Rodriguez-Hernandez v.

Miranda-Velez, 132 F.3d

848, 854 (1st Cir. 1998)

Second Circuit

Summa v. Hofstra Univ.,

708 F.3d 115, 124 (2d Cir.

2013)

Eighth Circuit

Crist v. Focus Homes, Inc.,

122 F.3d 1107, 1108 (8th

Cir. 1997)

Ninth Circuit

Folkerson v. Circus Circus

Enters., Inc., 107 F.3d 754,

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

756 (9th Cir. 1997)

Tenth Circuit

Lockard v. Pizza Hut, Inc.,

162 F.3d 1062, 1074 (10th

Cir. 1998)

Eleventh Circuit

Watson v. Blue Circle, Inc.,

324 F.3d 1252, 1259 (11th

Cir. 2003)

Civil Rights

Civil Rights

CRS-24

Ninth Circuit

Tenth Circuit

Detwiler v. MidColumbia Med. Ctr.,

156 F.4th 886 (9th Cir.

2025)

Russell v. Driscoll, 157

F.4th 1348 (10th Cir.

2025)

A divided Ninth Circuit panel affirmed the dismissal of an

employee’s religious discrimination claim under Title VII of the

Civil Rights Act of 1964 (Title VII), where the plaintiff alleged

that her medical employer discriminated against her in denying

an accommodation from COVID-19 vaccination and testing

requirements. The majority held that in deciding whether a

Title VII plaintiff has sufficiently stated a religious

accommodation claim, a court must look for a close connection

between the plaintiff’s religious belief and her opposition to a

work requirement. The majority rejected the approach of the

Sixth, Seventh, and Eighth Circuits, which it described as

adopting a more lenient standard in which a plaintiff need only

invoke a religious belief in opposition to a secular work

requirement to state a Title VII claim. The majority held that

the plaintiff’s complaint in this case did not sufficiently show a

religious reason for her accommodation request; instead, it

showed her request was based on her secular interpretation of

medical research that she confirmed through personal prayer.

Sixth Circuit

Lucky v. Landmark Med.,

103 F.4th 1241, 1243 (6th

Cir. 2024)

The Tenth Circuit affirmed the district court’s judgment against

a U.S. Army employee who brought an employment

discrimination claim under Title VII of the Civil Rights Act of

1964 (Title VII), alleging a hostile work environment based on

gender. Among other findings, the panel rejected the plaintiff’s

argument that the district court should have applied the

Supreme Court’s decision in Muldrow v. City of St. Louis, which

clarified that a plaintiff must prove only “some injury” related to

employment terms or conditions to bring a Title VII claim

related to a discrete employment action (e.g., firing or

reassignment). The panel concluded that Muldrow does not

Sixth Circuit

McNeal v. City of Blue Ash,

117 F.4th 887, 904 (6th Cir.

2024)

Seventh Circuit

Passarella v. Aspirus, Inc.,

108 F.4th 1005, 1011 (7th

Cir. 2024)

Eighth Circuit

Ringhofer v. Mayo Clinic,

Ambulance, 102 F.4th 894,

902 (8th Cir. 2024)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

apply to hostile work environment claims. Instead, the panel

held that directly applicable earlier Supreme Court caselaw

remained controlling, requiring a more stringent showing of

“severe or pervasive” mistreatment to establish such claims.

The panel diverged from the Sixth Circuit, which applied

Muldrow’s reduced showing of harm to both discrete action and

hostile work environment claims.

CRS-25

Criminal Law & Procedure

Fifth Circuit

United States v. Riojas,

139 F.4th 465 (5th Cir.

2025)

The Fifth Circuit widened a circuit split over the ability of an

appeals court to sua sponte decide whether a criminal

defendant’s unconditional guilty plea waives any prior,

nonjurisdictional challenges to the underlying criminal

proceedings. The Fifth Circuit joined the Ninth and Tenth

Circuits in holding that the government must timely invoke the

waiver on appeal or else forfeit the benefit. The panel observed

a split with the Seventh Circuit, which recognizes that an

appeals court can independently determine whether an

unconditional guilty plea precludes review of a defendant’s

challenge even if the government fails to invoke the waiver.

Seventh Circuit

United States v. Combs,

657 F.3d 565, 568–71 (7th

Cir. 2011)

Criminal Law & Procedure

First Circuit

United States v. Pontz,

132 F.4th 10 (1st Cir.

2025)

The First Circuit decided that a trial court had improperly

denied a criminal defendant’s motion to dismiss his indictment

for embezzlement in violation of 18 U.S.C. § 641. The

defendant had argued that the government wrongly charged

him for conduct that occurred outside the five-year statute of

limitations applicable to Section 641 and most noncapital

federal crimes. Disagreeing with the Fourth Circuit but joining

the majority of circuit courts that have considered the

question, the First Circuit panel ruled that federal law does not

treat the crime of embezzlement as a “continuing offense” for

which the limitations period begins to run only after the offense

is completed. (For crimes that are not continuing offenses, the

limitations period starts once all elements of the crime are

present, no matter the duration of the resulting illegal activity.)

Here, the First Circuit panel held that the defendant’s

limitations argument had merit on account of the government

charging him with conduct at least partially occurring outside

the five-year window. The panel remanded the case for the trial

court to consider the appropriate remedy, possibly including

sustaining the conviction on the basis of conduct that occurred

within five years of indictment.

Fourth Circuit

United States v. Smith, 373

F.3d 561, 563–64 (4th Cir.

2004) (per curiam)

Subject

Circuit

Citation

Ruling

Criminal Law & Procedure

First Circuit

Rodriguez-Mendez v.

United States, 134

F.4th 1 (1st Cir. 2025)

The Third Circuit upheld a criminal defendant’s felon-inpossession-of-a-firearm conviction under 18 U.S.C. § 922(g)(1)

but concluded his sentencing enhancement under the Armed

Career Criminal Act (ACCA) was improper. The ACCA

provides for a sentencing enhancement when a defendant has

“three previous convictions . . . for a violent felony.” The

ACCA defines “violent felony” to include certain enumerated

offenses, including extortion, as well as any offense that “has as

an element the use, attempted use, or threatened use of

physical force against the person of another.” The circuit court

held that the defendant’s carjacking offense under Puerto Rico

law did not satisfy the ACCA’s general definition of a violent

felony because the offense may be committed through threats

against property rather than persons. The court further

concluded the Puerto Rico carjacking offense did not satisfy the

generic definition of extortion (i.e., obtaining the victim’s

induced consent through force or intimidation) because the

offense could be committed without the victim’s induced

consent to the taking of the vehicle. In so doing, the court

expressed its disagreement with the Seventh and Tenth

Circuits, which the court described as treating the difference

between taking property against a victim’s will and taking

property with the victim’s induced consent as a legally

meaningless distinction.

Seventh Circuit

United States v. Hatley, 61

F.4th 536, 537 (7th Cir.

2023), cert. denied, 144 S.

Ct. 545 (2024) (mem.)

The First Circuit held that a criminal defendant’s application for

habeas relief, premised on the ineffective assistance of counsel

by the lawyer who represented him in criminal proceedings and

an earlier habeas petition, should be treated as a “second or

successive” habeas application and dismissed under 28 U.S.C.

§ 2244(b)(2). The panel noted disagreement with the Third

Circuit, which concluded in a case involving a similar fact

pattern that Section 2244(b)(2) did not require dismissal of the

petitioner’s second habeas petition because the petitioner

lacked the opportunity to raise an ineffective assistance of

counsel claim earlier due to the same counsel representing him

at trial and in his first habeas petition.

Third Circuit

Lesko v. Sec’y of Penn.

Dep’t of Corrs., 34 F.4th

211, 238 (3d Cir. 2022)

Criminal Law & Procedure

CRS-26

Acknowledged Circuit

Split on a

Controlling Issue

First Circuit

Anderson v. Divris,

138 F.4th 625 (1st Cir.

2025), cert. denied sub

nom., Anderson v.

Lizotte, No. 25-5486,

2026 WL 79630 (U.S.

Jan. 12, 2026)

Tenth Circuit

United States v. Castillo,

811 F.3d 342, 348 (10th

Cir. 2015), superseded by

regulation as stated in,

United States v. Duran, 754

F. App’x 739 (10th Cir.

2018)

CRS-27

Acknowledged Circuit

Split on a

Controlling Issue

Subject

Circuit

Citation

Ruling

Criminal Law & Procedure

First Circuit

United States v.

Garcia-Oquendo, 144

F.4th 66 (1st Cir. 2025)

The First Circuit affirmed a district court’s determination to

revoke a releasee’s terms of supervised release and impose a

new sentence. The panel found that the district court had erred

in admitting hearsay evidence without conducting the limited

confrontation right balancing test required by Federal Rule of

Criminal Procedure 32.1(b)(2)(C). Joining the Fourth Circuit,

the panel held that Rule 32.1’s confrontation right applies to the

entire revocation proceeding—both the “guilt phase,” which

examines whether the releasee violated the conditions of

supervised release, and the “sentencing phase,” which identifies

the consequences for that violation. The panel decision split

with the Tenth Circuit, which applies the right to confrontation

only to the guilt phase of the revocation proceeding, and is in

tension with the Fifth and Eighth Circuits, which have suggested

that the right is not implicated at the sentencing phase. The

panel nonetheless found the consideration of hearsay evidence

to be harmless because other evidence in the record strongly

supported the district court’s conclusions.

Tenth Circuit

United States v. Ruby, 706

F.3d 1221, 1226–27 (10th

Cir. 2013)

Criminal Law & Procedure

Second Circuit

United States v. Elias,

154 F.4th 56 (2d Cir.

2025)

The Second Circuit vacated a criminal forfeiture order against a

defendant convicted of robbery under the Hobbs Act. The

court held that the scope of the order was improper because it

was calculated based on a pro rata share of what the group of

robbery perpetrators took, rather than on what the defendant

directly acquired. Under 18 U.S.C. § 981(a)(1)(C), property that

“constitutes or is derived from proceeds traceable to a

violation” of certain listed statutes—including the Hobbs Act—

is subject to forfeiture to the United States. (Although Section

981 concerns civil forfeiture, 28 U.S.C. § 2461 permits criminal

forfeiture as a form of punishment when civil forfeiture is

authorized.) Widening a circuit split, the court joined the Third

and Ninth Circuits in holding that criminal forfeiture under the

governing statutes is limited to property tainted by the

underlying offense and actually acquired by the defendant.

These courts’ view relies on the Supreme Court’s decision in

Honeycutt v. United States, which interpreted a different

forfeiture statute that the courts viewed as functionally similar

to Section 981(a)(1)(C). The Second Circuit also acknowledged

that the Sixth and Eighth Circuits have taken a different view.

Those courts have interpreted the statute at issue in Honeycutt

as meaningfully distinct from Section 981(a)(1)(c) and have held

that forfeiture under that provision may extend to property

Sixth Circuit

United States v. Sexton,

894 F.3d 787, 799 (6th Cir.

2018)

Eighth Circuit

United States v. Peithman,

917 F.3d 635, 652 (8th Cir.

2019)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

acquired by a co-defendant, so long as that property is

traceable to the offense.

CRS-28

Criminal Law & Procedure

Third Circuit

United States v. Clay,

128 F.4th 163 (3d Cir.

2025), cert. denied,

No. 25-163, 2025 WL

3198590 (U.S. Nov. 17,

2025)

The Third Circuit rejected a criminal defendant’s facial and asapplied constitutional challenges to his international sex tourism

conviction under 18 U.S.C. § 2423(c) (barring U.S. citizens and

lawful permanent residents from engaging in illicit sexual

conduct in foreign countries). The panel held that Section

2423(c) was a lawful exercise of Congress’s power under the

Foreign Commerce Clause and the Necessary and Proper

Clause. In so doing, the panel disagreed with the Sixth Circuit

and joined the majority of reviewing circuit courts in ruling that

the Constitution grants Congress more expansive power to

regulate foreign commerce than interstate commerce. Still, the

Third Circuit held that the defendant’s convictions would be

constitutionally permissible even under the standard employed

in interstate commerce cases, because although Section 2423(c)

as applied to the defendant involved noncommercial conduct,

the provision regulates channels of foreign commerce and

activities that substantially affect foreign commerce.

Sixth Circuit

United States v. Al-Maliki,

787 F.3d 784, 789 (6th Cir.

2015)

Criminal Law & Procedure

Third Circuit

United States v. Vines,

134 F.4th 730 (3d Cir.

2025), cert. denied,

No. 25-106, 2025 WL

3198587 (U.S. Nov. 17,

2025) (mem.)

The Third Circuit held that a criminal defendant’s conviction

for attempted armed bank robbery constituted 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 as

including an offense that necessarily involves “the use,

attempted use, or threatened use of physical force.” The

defendant here pleaded guilty to attempted armed bank

robbery under 18 U.S.C. § 2113. Section 2113(a) proscribes the

taking of bank property “by force and violence, or by

intimidation . . . [or] extortion.” The Third Circuit also

reaffirmed its agreement with those courts that 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). The court

acknowledged a split with the D.C. Circuit, which has held that

Section 2113(a) defines a single crime that can be committed in

various ways and, because one of those ways involves

extortion, the crime does not satisfy the categorical

requirements to be a “crime of violence” under Section 924(c).

Fourth Circuit

United States v. McFadden,

739 F.2d 149, 151–52 (4th

Cir. 1984)

Sixth Circuit

United States v. Wesley,

417 F.3d 612, 618 (6th Cir.

2005)

Ninth Circuit

United States v. Moore,

921 F.2d 207, 209 (9th Cir.

1990)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

In deciding that attempted bank robbery is categorically a

“crime of violence,” the Third Circuit approvingly cited Second,

Fifth, and Seventh Circuit decisions as recognizing attempted

bank robbery as necessarily involving threats of force or

intimidation. The court split with the Fourth, Sixth, and Ninth

Circuits, which have held that attempted bank robbery, unlike

the crime of bank robbery itself, does not require proof of

actual force, violence, or intimidation in order to sustain a

conviction.

CRS-29

Criminal Law & Procedure

Third Circuit

United States v.

Guyton, 144 F.4th 449

(3d Cir. 2025), cert.

denied, No. 25-5967,

2025 WL 3507067

(U.S. Dec. 8, 2025)

(mem.)

The Third Circuit considered various challenges raised by a

criminal defendant to his conviction and sentence for drug- and

firearm-related offenses, including a challenge to the defendant’s

sentencing enhancement under 21 U.S.C. § 841(b) for having

been previously convicted of a “serious drug felony.” The

appellate court determined that the district court had failed to

colloquy with the defendant under 21 U.S.C. § 851(b), which

would have allowed him to affirm or deny a previous conviction

alleged in the information, but observed that the defendant did

not timely object. Joining the Ninth Circuit, the Third Circuit

decided that, because the defendant’s objection was not

preserved, the Section 851(b) violation was subject to review

for plain error, under which the defendant bears the burden of

showing a reasonable probability that, but for the error, a

different outcome would have occurred. The panel held the

defendant had not met this burden. The panel observed a split

with the D.C. Circuit, which reviews a Section 851(b) violation

de novo and places the burden on the government to show the

error was harmless.

D.C. Circuit

United States v. Baugham,

613 F.3d 291, 296 (D.C.

Cir. 2010) (per curiam)

Criminal Law & Procedure

Third Circuit

United States v.

Harmon, 150 F.4th 197

(3d Cir. 2025)

The Third Circuit affirmed a defendant’s sentence, finding that

due process generally applied in sentencing reduction

proceedings, but that the defendant’s rights had not been

violated. The defendant had argued that a district court’s

reliance on a witness statement to deny his motion for a

sentence reduction under 18 U.S.C. § 3582(c)(2) had

contravened due process. The Third Circuit panel concluded

that the principles in U.S. Sentencing Guidelines § 6A1.3(a)

require that defendants receive notice and the opportunity to

contest new information relied on by district courts in sentence

reduction proceedings. Concurring with the Fifth, Seventh,

Eighth, and Eleventh Circuits on this requirement, the panel

Ninth Circuit

United States v. MercadoMoreno, 869 F.3d 942, 956

(9th Cir. 2017)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

noted and distinguished a circuit split with the Ninth, which

leaves the necessity for a hearing on supplemental findings to

the discretion of the district court in Section 3582(c)(2)

decisions. The panel found, however, that the witness

statement at issue did not trigger due process requirements

because it did not constitute “new information” relied on by

the district court for the first time in finding material facts. The

panel, therefore, affirmed the district court’s sentence

reduction denial.

Criminal Law & Procedure

Third Circuit

Honda Lease Trust v.

Malanga’s Auto., 152

F.4th 477 (3d Cir.

2025)

In a case stemming from the towing of a vehicle, the Third

Circuit examined whether a lawful towing becomes unlawfully

unreasonable under the Fourth Amendment through prolonged

detention, among other constitutional challenges. The Court

decided that the Fourth Amendment requires that both the

initial seizure and continued retention of property by the

government be reasonable. In doing so, the Third Circuit joined

the Ninth and D.C. Circuits and split with the First, Second,

Sixth, Seventh, and Eleventh Circuits, which have found the

Fourth Amendment to be inapplicable to the protracted

detention of legally seized property. Nevertheless, the Third

Circuit panel partially reversed the district court and

determined that the city’s constructive retention of the vehicle

in this case was reasonable and did not violate the Fourth

Amendment.

First Circuit

Denault v. Ahern, 857 F.3d

76, 84 (1st Cir. 2017),

superseded by rule as stated

in, Gonpo v. Sonam’s

Stonewalls & Art, LLC, 41

F.4th 1 (1st Cir. 2022)

Second Circuit

Shaul v. Cherry ValleySpringfield Centr. Sch.

Dist., 363 F.3d 177, 187 (2d

Cir. 2004)

Sixth Circuit

Fox v. Van Oosterum, 176

F.3d 342, 352 (6th Cir.

1999)

Seventh Circuit

Lee v. City of Chicago, 330

F.3d 456, 466 (7th Cir.

2003)

Eleventh Circuit

Case v. Eslinger, 555 F.3d

1317, 1330 (11th Cir. 2009)

CRS-30

Subject

Circuit

Citation

Ruling

Criminal Law & Procedure

Fourth Circuit

United States v. Perez,

150 F.4th 237 (4th Cir.

2025)

A divided Fourth Circuit panel vacated and remanded a district

court’s finding of special maritime and territorial jurisdiction

with instructions to apply the appropriate test under 18 U.S.C.

§ 7(3). At a bench trial, the defendant was convicted on child

pornography charges under 18 U.S.C. § 1466A(a)(1) and (b)(1),

which he committed while in a federal correctional institution.

He argued that the government had not proven the required

jurisdictional element in his case—that his federal institution fell

within the special maritime and territorial jurisdiction of the

United States. The panel majority decided that the question of

whether the location of the crime fell within federal territorial

jurisdiction component was a matter of law to be decided by

the court rather than a matter to be proven to a factfinder

beyond a reasonable doubt. The panel held that the facts

surrounding the special maritime and territorial jurisdiction

inquiry are “legislative facts” (facts that are universally true

rather than varying from case to case), not “adjudicative facts”

(which relate to the specific parties and events of a particular

case), such that the question was properly decided by the court

rather than the jury. In determining facts related to federal

jurisdiction over a location to be legislative facts decided by the

court, the panel majority joined the Second, Sixth, Eighth, and

Ninth Circuits and split with the First Circuit, which had found

the jurisdictional status of a federal penitentiary to be an

adjudicative fact for the jury. The panel majority separately

disagreed with both the district court and a different Sixth

Circuit case’s application of the appropriate jurisdictional test

under Section 7(3). The panel majority noted that these

decisions had focused too much on whether the federal

government had practical dominion over the prison and

remanded to the district court to apply all of the Section 7(3)

elements to determine the jurisdictional question.

First Circuit

United States v. Bello, 194

F.3d 18, 22–23 (1st Cir.

1999)

The Fifth Circuit widened a circuit split as to whether a federal

criminal defendant sentenced under 18 U.S.C. § 3583 to a

period of supervised release following imprisonment may have

the supervised release period tolled if he absconds. Agreeing

with the reasoning of an earlier Fifth Circuit decision that had

been rendered moot, the panel endorsed the application of the

judicially crafted “fugitive tolling doctrine” to those who violate

the conditions of their supervision and abscond. The court

joined the Second, Third, Fourth, and Ninth Circuits, which

First Circuit

United States v.

Hernandez-Ferrer, 599 F.3d

63 (1st Cir. 2010)

Criminal Law & Procedure

CRS-31

Acknowledged Circuit

Split on a

Controlling Issue

Fifth Circuit

United States v. Swick,

137 F.4th 336 (5th Cir.

2025)

Sixth Circuit

United States v. Blunt, 558

F.2d 1245, 1247 (6th Cir.

1977) (per curiam)

Eleventh Circuit

United States v. Talley, 83

F.4th 1296 (11th Cir. 2023)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

apply the doctrine to the terms of supervised release. The

court split with the First and Eleventh Circuits, which do not

recognize that the period of supervised release may be tolled

when a fugitive absconds.

CRS-32

Criminal Law & Procedure

Sixth Circuit

United States v. Drake,

126 F.4th 1242 (6th

Cir. 2025)

The Sixth Circuit affirmed a lower court’s application of 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.” Although the Guidelines do not

define what constitutes a “controlled substance,” the Sixth

Circuit looked to the state and federal drug schedules in place

at the time of a defendant’s conviction. The panel held that

even if the defendant’s prior state marijuana offense would not

be considered a “controlled substance” offense following

changes to the state drug laws, the sentencing enhancement

applied based on drug schedules in place at the time of the

defendant’s conviction. The court described its ruling as

consistent with circuit caselaw and rejected the defendant’s

argument that an intervening Supreme Court decision cast

doubt on circuit precedent. The court acknowledged

disagreement with the Fifth Circuit, which looks to whether a

defendant’s earlier convictions would qualify as controlled

substance offenses at the time of the defendant’s sentencing for

his most recent offense.

Fifth Circuit

United States v. Minor, 121

F.4th 1085, 1091 (5th Cir.

2024)

Criminal Law & Procedure

Sixth Circuit

United States v. Shaw,

139 F.4th 548 (6th Cir.

2025)

In affirming conditions imposed on a defendant pursuant to his

criminal sentence, a divided Sixth Circuit panel considered the

relationship between the district court’s oral pronouncement

of a sentence and the subsequent written judgment. The

defendant had entered a plea agreement that waived his right to

challenge his criminal sentence, but alleged on appeal that the

district court’s written judgment conflicted with the orally

pronounced sentence. The panel held that the written judgment

is merely evidence of the defendant’s sentence, which is

delivered by oral pronouncement. The panel joined the Fourth

and Seventh Circuits in holding that a defendant’s waiver of the

right to challenge his criminal sentence does not preclude

challenges to a district court’s written judgment. The panel split

from the Fifth Circuit, which has held that the written judgment

is part of a defendant’s sentence and that the plea agreement

Fifth Circuit

United States v. Higgins,

739 F.3d 733, 738 (5th Cir.

2014)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

therefore waives the ability of the defendant to challenge the

judgment as inconsistent with the oral pronouncement. Turning

to the merits, the panel upheld conditions set forth by the

district court in its written judgment, concluding that they

clarified rather than conflicted with the orally pronounced

sentence.

Criminal Law & Procedure

Criminal Law & Procedure

CRS-33

Sixth Circuit

Sixth Circuit

United States v.

Pancholi, 148 F.4th 382

(6th Cir.), cert. denied,

No. 25-565 (U.S. Dec.

15, 2025) (mem.)

In affirming a district court’s decision, the Sixth Circuit found

that a defendant’s constitutional rights had not been violated

during his trial. Among other things, the panel found no

violation of the defendant’s Sixth Amendment right to

compulsory process in the district court’s exclusion of a

defense witness as a sanction for a discovery violation. The

panel observed that under relevant Supreme Court precedent

in Taylor v. Illinois, a willful discovery violation justifies a witness’s

exclusion, but that courts are divided on whether Taylor

requires a finding of willfulness to exclude a witness. The Sixth

Circuit joined the Seventh, Tenth, and D.C. Circuits in

recognizing bad faith or willfulness on the part of the defense as

an important factor in balancing witness exclusion, but rejected

the notion that bad faith was a prerequisite—splitting from the

Second and Ninth Circuits. The panel concluded that the

district court had applied the balancing test in Taylor reasonably

in excluding the witness and did not commit constitutional

error.

Second Circuit

Noble v. Kelly, 246 F.3d 93,

99–101 (2d Cir. 2001)

Randolph v. Macauley,

155 F.4th 859 (6th Cir.

2025)

A divided Sixth Circuit panel declined to expand a petitioner's

Certificate of Appealability (COA), which he sought to be able

to present more arguments to the appellate court during his

habeas corpus proceedings. Under the Antiterrorism and

Effective Death Penalty Act of 1996 (AEDPA), a petitioner may

not appeal from final orders in certain habeas corpus

proceedings unless the judge issues a COA. In this case, after

petitioner’s habeas corpus hearing in district court—where he

asserted trial counsel was constitutionally ineffective for four

separate reasons—the district court declined to issue a COA.

Petitioner appealed this denial, and a panel of the Sixth

Circuit—called a motions panel, for its role in screening

incoming petitions without deciding the merits—granted a

COA on only one of his four theories of relief. The Sixth

Circuit merits panel—which considers the substance of a

petitioner’s arguments—then declined to expand the

Third Circuit

Villot v. Varner, 373 F.3d

327, 337 n.13 (3d Cir.

2004)

Ninth Circuit

United States v. Peters, 937

F.2d 1422, 1426 (9th Cir.

1991)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

petitioner’s COA. First, the panel explained that the text and

structure of AEDPA indicated that merits panels were not to

consider issues outside the scope of the COA. The panel

opined that one purpose of AEDPA was to limit a petitioner’s

ability to seek relief in the federal courts and to promote

finality of convictions. The COA process promotes finality by

requiring a petitioner to seek leave to present an argument

before merits briefing begins. If merits panels reconsidered the

determinations of motions panels, this would be counter to

AEDPA’s text and structure, the court said. Additionally, the

panel explained, the law-of-the-case doctrine was a further

reason not to expand the COA. This doctrine precludes

revisiting questions decided at earlier stages of the same case.

The court explained that the motions panel’s decision to grant

a COA on only one theory of relief is part of the law of the

case that the merits panel may not reconsider, because none of

the exceptions to that doctrine applied in this instance. In so

concluding, the Sixth Circuit split from the Third Circuit, which

permits a merits panel in certain circumstances to expand a

COA.

Criminal Law & Procedure

CRS-34

Sixth Circuit

United States v. Dale,

156 F.4th 757 (6th Cir.

2025)

A divided panel of the Sixth Circuit vacated sentences reduced

by the district court under Section 404 of the First Step Act

and remanded for further proceedings. The panel addressed a

circuit split regarding whether the First Step Act permits a

reduction of sentences in a defendant’s conviction for offenses

not covered by the Act’s reduction provisions in addition to

reductions for covered offenses. In line with the Fourth,

Seventh, and Eighth Circuits, the panel majority determined

that a district court has discretion under the Act to reduce

sentences for noncovered offenses along with covered offenses

if the noncovered offenses are part of a sentencing package—

where a sentence for one count affects the sentence for

another. Acknowledging that its holding split from decisions of

the Second and Tenth Circuits, the panel majority pointed to

the Act’s lack of explicit restrictions applicable to reductions to

sentences for noncovered offenses in finding that district courts

retain discretion.

Second Circuit

United States v. Young, 998

F.3d 43, 55 (2d Cir. 2021)

Tenth Circuit

United States v. Gladney,

44 F.4th 1253, 1262 (10th

Cir. 2022)

Subject

Circuit

Citation

Ruling

Criminal Law & Procedure

Seventh Circuit

Lairy v. United States,

142 F.4th 907 (7th Cir.

2025)

The Seventh Circuit joined several other circuits in holding that

the misclassification of a predicate offense for purposes of a

sentencing enhancement under the Armed Career Criminal Act

(ACCA) gives rise to a “legal innocence” claim by the criminal

defendant, which cannot overcome the one-year statute of

limitations for certain habeas corpus claims set forth in 28

U.S.C. § 2255(f). The circuit panel distinguished a “legal

innocence” claim, based on misapplication of the law or a

challenge to the law’s validity, from an “actual innocence” claim,

premised on new evidence of factual innocence (which might

enable the defendant to overcome the statute of limitations).

The panel acknowledged a split with both the Ninth Circuit,

which treats misclassification arguments based on a retroactive

intervening change in the law to be “actual innocence” claims,

and the Eighth Circuit, which had excused a defendant’s

procedural default when challenging application of the ACCA.

Eighth Circuit

Lofton v. United States, 920

F.3d 572, 576–77 (8th Cir.

2019)

The Eighth Circuit affirmed a district court’s denial of a criminal

defendant’s motion to dismiss his indictment, including his claim

that his rights were violated under the Speedy Trial Act. The

Act generally requires a federal criminal trial to begin within 70

days of the defendant being charged or making an initial

appearance before the court, but specifies periods of delay that

are excluded from this 70-day period. These exclusions include

the delay resulting from the court granting a continuance if the

court has found that the “ends of justice served by granting the

continuance outweigh the public’s and defendant’s interests in a

speedy trial.” In this case, the district court had issued an openended continuance to allow the defendant’s newly appointed

counsel time to prepare for trial, which resulted in the trial

being delayed beyond the 70-day period normally required

under the Speedy Trial Act. Rejecting the defendant’s

subsequent challenge to the open-ended continuance, the

Eighth Circuit joined several other circuits in deciding that such

continuances are consistent with the Act’s “ends-of-justice”

exception where, as here, the continuance was not of an

unreasonable length. The court split with the Second and Ninth

Circuits, which have held that “ends-of-justice” continuances

must be limited in time.

Second Circuit

United States v. Gambino,

59 F.3d 353, 358 (2d Cir.

1995)

Criminal Law & Procedure

CRS-35

Acknowledged Circuit

Split on a

Controlling Issue

Eighth Circuit

United States v. HarrisFranklin, 146 F.4th 631

(8th Cir. 2025)

Ninth Circuit

Allen v. Ives, 950 F.3d 1184,

1190 (9th Cir. 2020)

Ninth Circuit

United States v. Jordan, 915

F.2d 563, 565 (9th Cir.

1990)

CRS-36

Acknowledged Circuit

Split on a

Controlling Issue

Subject

Circuit

Citation

Ruling

Criminal Law & Procedure

Eighth Circuit

Lee v. United States,

149 F.4th 981 (8th Cir.

2025)

An Eighth Circuit panel reversed and remanded a district court

decision, which had initially dismissed a motion to vacate a

defendant’s sentence as time-barred under 28 U.S.C. § 2255(f).

Section 2255 sets a one-year period of limitation from the date

on which the judgment of conviction becomes final to contest

the sentence. The defendant’s initial judgment deferred

restitution and was later amended to include it, and the

question before the panel was at what point the judgment of

conviction becomes final when restitution is deferred. Agreeing

with the Second and Tenth Circuits, the panel found that the

judgment is not final for Section 2255 purposes until it is

amended to include restitution. Because restitution is a

component of the sentence, the panel found that the clock

starts when the entire sentence becomes final and therefore

the defendant’s motion was not time-barred. The panel

recognized a split with the Ninth Circuit, which had concluded

that a judgment that included a restitution amount to be later

determined was final for purposes of commencing the period of

limitation under Section 2255.

Ninth Circuit

United States v. Gilbert,

807 F.3d 1197, 1200 (9th

Cir. 2015)

Criminal Law & Procedure

Eighth Circuit

Garrett v. Payne, 154

F.4th 599 (8th Cir.

2025)

A divided Eighth Circuit determined that a petitioner’s motion

to file a belated appeal tolled the statute of limitations under

the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), reversing and remanding a district court’s order to

the contrary. After the petitioner was convicted at trial, he

asked his lawyer to appeal the case; instead, the attorney filed a

motion to withdraw without filing an appeal. By the time the

petitioner was able to file his paperwork for his direct appeal in

the correct court, the deadline to appeal had passed. The

petitioner then filed a motion for belated appeal, which was

denied. In subsequent habeas corpus proceedings, petitioner

alleged he was deprived of his constitutional right to a direct

appeal. The question was whether the statute of limitations in

AEDPA was tolled while petitioner’s motion for a belated

appeal was pending. Under AEDPA, the statute of limitations is

tolled while a “properly filed application for State postconviction or other collateral review . . . is pending.” The Eighth

Circuit explained that collateral review is a “judicial

reexamination of a judgment or claim in a proceeding outside of

the direct review process.” The petitioner argued that his

motion for belated direct appeal constituted “collateral review”

because a belated-appeal motion would cause the state court to

Eleventh Circuit

Espinosa v. Sec’y Dep’t of

Corr., 804 F.3d 1137,

1138–39 (11th Cir. 2015)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

begin new proceedings. The Eighth Circuit agreed, concluding

that a motion for belated direct appeal constitutes “collateral

review” within the meaning of AEDPA, and so tolls the statute

of limitations. In so concluding, the Eighth Circuit joined the

Sixth Circuit, which previously assumed without deciding that

pending belated-appeal motions toll AEDPA’s statute of

limitations, and split with the Eleventh Circuit, which previously

held to the contrary.

CRS-37

Criminal Law & Procedure

Eighth Circuit

United States v.

Wright, 163 F.4th 469

(8th Cir. 2025)

The Eighth Circuit held that a presidential commutation of a

defendant’s sentence does not deprive the court of jurisdiction

to hear collateral attacks on that sentence. The defendant filed

a motion for a reduction in his sentence, arguing “extraordinary

and compelling reasons” warranted a reduction. While the

challenge was still being litigated, President Biden commuted

the defendant’s sentence to 330 months. The panel first

addressed whether presidential commutation deprives an

Article III court of jurisdiction to hear the case and noted a split

among the circuits on this question. The Fourth Circuit has said

a commutation may not be disturbed by the courts, while the

Sixth Circuit has said a court may not modify the commutation

itself but may correct its own errors, for example, if the

sentence were unconstitutional in the first place. The Fifth and

Eleventh Circuits likewise found jurisdiction after a

commutation but did not address the separation-of-powers

inquiry. The Eighth Circuit panel concluded the court retained

jurisdiction to hear collateral attacks on the underlying

sentence notwithstanding the commutation. The panel

reasoned that the President would otherwise have the power

to insulate certain sentences from judicial review, contrary to

the principle that sentencing is the purview of courts.

Fourth Circuit

Blount v. Clarke, 890 F.3d

456, 462 (4th Cir. 2018)

Criminal Law & Procedure

Ninth Circuit

Race v. Salmonsen, 131

F.4th 792 (9th Cir.

2025)

A divided Ninth Circuit panel held that a federal district court

erred when, sua sponte, it dismissed a prisoner’s habeas corpus

petition as time-barred without providing him notice and a

chance to respond. The petitioner, proceeding pro se, had

included a legal memorandum with his petition acknowledging

that his petition was outside the statute of limitations but

arguing that the statute of limitations should be tolled. Citing

circuit precedent, the panel majority held that the petitioner’s

apparent awareness of his rights did not displace the reviewing

court’s obligation to provide him with formal notice of its

Fourth Circuit

Hill v. Braxton, 277 F.3d

701, 707 (4th Cir. 2002)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

intention to dismiss his habeas claim and an opportunity to

respond. The majority observed that its ruling conflicted with a

decision from the Fourth Circuit that concluded notice is

unnecessary if the materials presented to the district court

make it clear that the petition is time-barred and equitable

tolling principles cannot salvage the claim.

Criminal Law & Procedure

Criminal Law & Procedure

CRS-38

Ninth Circuit

Ninth Circuit

United States v. Myers,

136 F.4th 917 (9th Cir.

2025)

Gonzalez v. Herrera,

151 F.4th 1076 (9th

Cir. 2025)

A divided Ninth Circuit affirmed a district court’s order that

accumulated deposits made by friends and family of a federal

inmate be applied to the inmate’s restitution obligations under

the Mandatory Victims Restitution Act (MVRA). A provision of

the MVRA, 18 U.S.C. § 3664(n), generally requires a covered

criminal who “receives substantial resources from any source,

including inheritance, settlement, or other judgment, during a

period of incarceration . . . to apply the value of such resources

to any restitution or fine still owed.” The Ninth Circuit

majority held that Section 3664(n)’s reference to “any source”

indicated that the MVRA applied to aggregated sums accrued in

an inmate’s trust account from periodic deposits by multiple

sources. The majority disagreed with the Fifth and First

Circuits, among other courts, which have interpreted the

MVRA’s reference to an “inheritance, settlement, or other

judgment” to indicate that the statute was intended to apply in

more limited fashion to sudden financial windfalls.

First Circuit

United States v. Saemisch,

70 F.4th 1, 6 (1st Cir. 2023)

The Ninth Circuit reversed and remanded a district court’s

order denying a writ of habeas corpus. First applying plain text

analysis and then canons of statutory construction, the panel

found that 18 U.S.C. § 3632(d)(4)(C) permits a defendant to

use leftover earned time credits under the First Step Act to

reduce his term of supervised release. Creating a circuit split,

the Ninth Circuit found the language to be unambiguous and

disagreed with the statutory analysis of the Fourth, Fifth, and

Eleventh Circuits, which have interpreted this provision to

apply time credits to the early start of prelease custody or

supervised release, but not to reduce the period of supervised

release. The decision also noted possible divergence from a

Third Circuit decision, which the panel perceived to suggest

that leftover time credits post-release were not usable to

reduce the amount of supervised release.

Fourth Circuit

Valladares v. Ray, 130 F.4th

74, 79 (4th Cir. 2025)

Fifth Circuit

United States v. Hughes,

914 F.3d 947, 949 (5th

Cir.), as revised (Feb. 1,

2019), as revised (Feb. 14,

2019)

Fifth Circuit

Stinson v. Martinez, No. 2430793, 2025 WL 2017872,

at *1 (5th Cir. July 18,

2025) (per curiam)

Eleventh Circuit

Guerriero v. Miami RRM,

No. 24-10337, 2024 WL

2017730, at *2 (11th Cir.

May 7, 2024) (per curiam)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

Possible divergence from

Third Circuit:

Malik v. Warden Loretto

FCI, No. 23-2281, 2024

WL 3649570, at *2 (3d Cir.

Aug. 5, 2024) (per curiam)

CRS-39

Criminal Law & Procedure

Tenth Circuit

United States v.

Zamora, 136 F.4th

1278 (10th Cir. 2025)

The Tenth Circuit affirmed a federal district court’s exercise of

jurisdiction under the Juvenile Delinquency Act (JDA) in a case

where the juvenile defendant had shot and killed a U.S. postal

worker. When the federal government seeks to exercise

jurisdiction over a juvenile, the JDA requires, among other

things, that the Attorney General certify “a substantial Federal

interest in the case or the offense to warrant the exercise of

Federal jurisdiction.” In rejecting the defendant’s challenge to

the exercise of federal jurisdiction, the Tenth Circuit joined

nearly every federal appeals court except the Fourth Circuit in

holding that the Attorney General’s certification of a substantial

federal interest is an unreviewable act of prosecutorial

discretion. The circuit panel further held that the JDA does not

require the Attorney General to identify the specific basis for

her subjective belief that a substantial federal interest exists in

the certification.

Fourth Circuit

United States v. Juv. Male

No. 1, 86 F.3d 1314, 1317–

20 (4th Cir. 1996)

Criminal Law & Procedure

Tenth Circuit

United States v.

Rudolph, 152 F.4th

1197 (10th Cir. 2025),

petition for cert. filed,

No. 25-675 (U.S. Dec.

10, 2025)

After affirming a defendant’s conviction for foreign murder (18

U.S.C. § 1119) and mail fraud (18 U.S.C. § 1341), the Tenth

Circuit rejected the defendant’s arguments that assets

purchased using the proceeds of his murdered wife’s life

insurance along with other untainted funds were too

commingled to justify forfeiture under 18 U.S.C. § 981(a)(1)(C).

The panel cited decisions by the Eighth and Ninth Circuits

involving direct forfeiture of property traceable to wire fraud as

support for its holding. The panel specifically rejected the

defendant’s reliance on a Third Circuit opinion, which had

found that when commingled assets cannot be easily divided,

the government must use the substitute assets provision in 21

U.S.C. § 853(p) to satisfy forfeiture. The Tenth Circuit also

pointed to a subsequent Third Circuit decision in which that

court had allowed the direct forfeiture of commingled assets

where the laundered funds could be clearly traced. The Tenth

Circuit concluded that there was no clear error in the district

court’s finding that the defendant’s commingled assets could be

Third Circuit

United States v. Voigt, 89

F.3d 1050, 1088 (3d Cir.

1996)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

divided and were traceable to laundered funds and thus

deemed the forfeiture proper.

CRS-40

Criminal Law & Procedure

Eleventh Circuit

United States v. Leahy,

152 F.4th 1356 (11th

Cir. 2025)

The Eleventh Circuit affirmed a criminal conviction under 18

U.S.C. § 245(b)(2)(B), which, among other things, prohibits

using force or threats of force to willfully injure, intimidate, or

interfere with a person because of their race and because they

are enjoying a facility administered by a state or local

government. A trial court found that the defendant repeatedly

attempted to run a family’s car off a county road while shouting

racial slurs and miming shooting the victims. In upholding the

conviction, the panel rejected the defendant’s constitutional

challenge, holding that Section 245(b)(2)(B) is a valid exercise of

Congress’s Thirteenth Amendment authority to legislate against

the badges and incidents of slavery. The panel also interpreted

the statute to require only “but-for” causation—meaning the

government needed to prove only that the racially motivated

attack would not have occurred but for the victim’s use of the

county road. It rejected the defendant’s more stringent reading

of Section 245(b)(2)(B) as requiring proof that the defendant’s

intent or reason for acting was to stop the defendant from

using the road. The Eleventh Circuit acknowledged that some

other circuits, including the Second Circuit, interpreted Section

245(b)(2)(B) to impose such an intent standard, but declined to

follow them in light of subsequent Supreme Court caselaw on

but-for causation.

Second Circuit

United States v. Nelson,

277 F.3d 164, 189 (2d Cir.

2002)

Elections

Third Circuit

Eakin v. Adams Cnty.

Bd. of Elections, 149

F.4th 291 (3d Cir.

2025)

The Third Circuit upheld a lower court’s injunction blocking

enforcement of a Pennsylvania statute that required completed

mail-in ballots arriving in undated or misdated return envelopes

to be discarded. The panel held that the lower court properly

applied the Anderson-Burdick balancing test—which directs that

the burdens on electoral participation imposed by state action

be balanced against the asserted benefits of that action—to find

that this requirement unduly burdened Pennsylvanians’

constitutional right to vote. The panel found that the state’s

asserted interests—such as promoting the orderly

administration and solemnity of elections or deterring voter

fraud—were not meaningfully advanced by requiring voters to

date the return envelope. The court found this especially true

given that the state already required that mail-in ballots be

received by Election Day to be counted. In applying the

Seventh Circuit

Common Cause Ind. v.

Lawson, 977 F.3d 663, 664

(7th Cir. 2020)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

Anderson-Burdick test to mail-in ballot laws, the panel diverged

from the Seventh Circuit but joined the Second, Sixth, Ninth,

and Eleventh Circuits.

CRS-41

Employee Benefits

Fifth Circuit

Aramark Servs., Inc.

Grp. Health Plan v.

Aetna Life Ins. Co., 162

F.4th 532 (5th Cir.

2025)

A divided Fifth Circuit panel affirmed a lower court’s decision

not to stay litigation of the plaintiffs’ claims under the Employee

Retirement Income Security Act of 1974 (ERISA) pending

arbitration. The plaintiffs alleged that the defendant, a health

plan administrator, violated its fiduciary duties under ERISA in

mishandling health plan claims. An agreement between the

parties provided for the mandatory arbitration of claims not

seeking equitable relief. Although the plaintiffs sought money

damages (which are typically not equitable), the panel held that

the claims were equitable because plaintiffs sought “makewhole” monetary relief from the defendant’s violation of a

fiduciary duty under ERISA. The panel majority acknowledged

disagreement with the Fourth Circuit, which has held that such

claims under ERISA cannot be considered equitable in nature

unless the plaintiff seeks the transfer of specific funds alleged to

be wrongfully in the defendant’s possession, which had not

occurred here. The Fifth Circuit panel majority observed that

the disagreeing circuits’ position relied on a Supreme Court

decision concerning monetary damage claims under ERISA

against non-fiduciaries. The panel majority found no indication

the Court intended its decision to extend to fiduciary

defendants.

Fourth Circuit

Rose v. PSA Airlines, 80

F.4th 488, 496, 507 (4th

Cir. 2023)

Employee Benefits

Sixth Circuit

Aldridge v. Regions

Bank, 144 F.4th 828

(6th Cir. 2025)

The Sixth Circuit affirmed a district court’s dismissal of state

law claims brought by participants in a specific type of

retirement plan called a “top-hat” plan against the plan

administrator, holding that these claims were preempted by the

Employee Retirement Income Security Act of 1974 (ERISA).

The court also upheld the district court’s ruling that, under

ERISA’s civil enforcement provision for equitable relief, the

plaintiffs could not pursue a right to “surcharge” (a type of

monetary relief) against the plan administrator. Relying on

Supreme Court precedent, the panel determined that such

relief was not traditionally available in courts of equity. The

circuit panel joined the Fourth Circuit in holding that courts

may not grant this kind of remedy under 29 U.S.C. § 1132(a)(3)

to compensate a plan participant for losses caused by a

fiduciary. The panel acknowledged that several circuits had

Eleventh Circuit

Gimeno v. NCHMD, Inc.,

38 F.4th 910, 914–15 (11th

Cir. 2022)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

concluded otherwise, specifically citing to an Eleventh Circuit

case that took the contrary view.

Environmental Law

Ninth Circuit

Coastal Env’l Rts.

Found. v. Naples Rest.

Grp., LLC, 158 F.4th

1052 (9th Cir. 2025)

The Ninth Circuit concluded that a plaintiff’s outstanding

request for civil penalties under the Clean Water Act was

insufficient for Article III standing in view of existing mootness

doctrine and the defendant’s compliant behavior. The defendant

restaurant had for years discharged fireworks during its Fourth

of July celebrations, and the plaintiff environmental group

alleged this was a violation of the Clean Water Act. After the

initial case was filed, the defendant applied for, and received, a

permit for fireworks displays over the water; this permit had

not been available when the initial case was filed. The Ninth

Circuit concluded the permit mooted the matter, even though

the plaintiff had an outstanding demand for civil penalties. In so

concluding, the Ninth Circuit agreed with the Eighth Circuit,

which understood the request for civil penalties, like a request

for injunctive relief, to be mooted when the defendant receives

a permit to discharge the pollutant. The court observed that its

conclusion split from the Second, Third, Fourth, Seventh, and

Eleventh Circuits, each of which has held that any request for

civil penalties defeats mootness. The Ninth Circuit noted that

these contrary decisions were concluded before a seminal

Supreme Court case changed the mootness doctrine. Under

that case, the parties must have a “continuing interest” in the

litigation, which the panel explained would be impossible when

no threat of future violation exists.

Second Circuit

Atl. States Legal Found.,

Inc. v. Pan Am. Tanning

Corp.,

993 F.2d 1017, 1021 (2d

Cir. 1993)

Third Circuit

Nat. Res. Def. Council, Inc.

v. Texaco Refin. & Mktg.,

Inc.,

2 F.3d 493, 503 (3d Cir.

1993)

Fourth Circuit

Chesapeake Bay Found.,

Inc. v. Gwaltney of

Smithfield, Ltd., 890 F.2d

690, 696 (4th Cir. 1989)

Seventh Circuit

Atl. States Legal Found.,

Inc. v. Stroh Die Casting

Co.,

116 F.3d 814, 820 (7th Cir.

1997)

Eleventh Circuit

Atl. States Legal Found.,

Inc. v. Tyson Foods, Inc.,

897 F.2d 1128, 1135 (11th

Cir. 1990)

CRS-42

CRS-43

Acknowledged Circuit

Split on a

Controlling Issue

Subject

Circuit

Citation

Ruling

Firearms

Third Circuit

Koons v. Att’y Gen. of

New Jersey, 156 F.4th

210 (3d Cir. 2025),

vacated, No. 23-1900,

2025 WL 3552513 (3d

Cir. Dec. 11, 2025)

A divided panel of the Third Circuit held some, but not all,

portions of a New Jersey law imposing firearms permitting

requirements and carry restrictions on firearms owners were

likely constitutional on appeal of a preliminary injunction.

Applying the history-based framework established by the

Supreme Court’s decision in New York State Rifle & Pistol

Association., Inc. v. Bruen to assess whether a firearms regulation

is consistent with the Second Amendment, the panel majority

upheld the constitutionality of many of the law’s firearms

restrictions relating to sensitive places, such as public

gatherings, parks, public libraries and museums, health care

facilities, and public transit. Conversely, it agreed with the

district court’s injunction of portions of the law related to

permitting fees, private property requirements, liability

insurance requirements, and restrictions on private vehicles,

among other sections, as inconsistent with the Second

Amendment. As a threshold issue, the panel majority specifically

rejected the state’s arguments that a state acting as proprietor

of its own land need not justify firearms restrictions on state

property generally under the Second Amendment. In analyzing

this issue, the panel majority differentiated pre-Bruen decisions

from the D.C. Circuit and Ninth Circuit and recognized a

disagreement with a post-Bruen statement of the Ninth Circuit,

allowing states to exclude firearms from their property in the

same way as a private party. Instead, the panel majority

determined that Bruen required that a state’s exclusions of

firearms on state property undergo analysis under its historybased framework, under which analogous historical laws

protecting sovereign functions and officials would be considered

as relevant.

Ninth Circuit

Wolford v. Lopez, 116

F.4th 959, 970–71 (9th Cir.

2024), cert. granted in part,

No. 24-1046, 2025 WL

2808808 (Oct. 3, 2025)

(mem.)

Firearms

Fifth Circuit

United States v.

Ahmadou, 159 F.4th

936 (5th Cir. 2025)

A divided Fifth Circuit affirmed a criminal defendant’s

conviction and sentence for unlawful possession of a firearm as

an alien admitted under a nonimmigrant visa. Among other

things, the majority agreed with the trial court that the

defendant was not entitled to assert an entrapment-by-estoppel

defense, under which the defendant would have argued that a

federally licensed, private firearms dealer misrepresented the

defendant’s eligibility to possess firearms he rented from the

dealer. The panel described entrapment by estoppel as a

defense available when a government official affirmatively

misrepresents the law, actively assuring the defendant that the

Ninth Circuit

United States v. Tallmadge,

829 F.2d 767, 774 (9th Cir.

1987)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

conduct is legal. The panel majority held that the defense was

unavailable because the dealer was not a federal officer. The

majority noted its conclusion that a federally licensed firearm

dealer is not a federal officer aligns with the Seventh, Eighth,

Tenth, and Eleventh Circuits, but that the Ninth Circuit has

held that dealers may be considered federal officers for

purposes of entrapment-by-estoppel claims.

Firearms

CRS-44

Fifth Circuit

United States v.

Mitchell, 160 F.4th 169

(5th Cir. 2025)

A divided Fifth Circuit panel vacated a criminal defendant’s

conviction under 18 U.S.C. § 922(g)(1) for possessing a firearm

as a convicted felon, holding that the statute violated the

Second Amendment as applied to the defendant based on his

prior conviction for possessing a firearm as an unlawful user of

marijuana under 18 U.S.C. § 922(g)(3). The panel majority

followed an earlier Fifth Circuit decision that held Section

922(g)(1) may be unconstitutional as applied to certain felons,

which the majority described as aligning with precedential

decisions by the First, Third, Sixth, and Seventh Circuits. This

stands in contrast to decisions from the Fourth, Eighth, Ninth,

Tenth, and Eleventh Circuits, which have upheld Section

922(g)(1) as categorically constitutional for all felons. The Fifth

Circuit majority concluded that permanently prohibiting firearm

possession based on this defendant’s predicate felony offense

involving habitual marijuana use was inconsistent with the

Second Amendment because the prohibition was not

sufficiently analogous to historical restrictions on firearm

possession by dangerous or intoxicated individuals. The panel

majority also noted that its approach to deciding whether a

criminal defendant is a dangerous felon who may be subject to

Section 922(g)(1) considered only the defendant’s felony

history, in contrast to the approach of the Third and Sixth

Circuits, which also consider the felon’s prior misdemeanor

offenses when assessing dangerousness.

Fourth Circuit

United States v. Hunt, 123

F.4th 697, 702 (4th Cir.

2024), cert. denied, 145 S.

Ct. 2756 (2025)

Eighth Circuit

United States v. Jackson,

110 F.4th 1120, 1129 (8th

Cir. 2024), cert. denied, 145

S. Ct. 2708 (2025)

Ninth Circuit

United States v. Duarte,

137 F.4th 743, 748 (9th Cir.

2025) (en banc)

Tenth Circuit

Vincent v. Bondi, 127 F.4th

1263, 1265–66 (10th Cir.

2025)

Eleventh Circuit

United States v. Dubois, 94

F.4th 1284, 1293 (11th Cir.

2024), vacated, 145 S. Ct.

1041, and reinstated, 139

F.4th 887 (11th Cir. 2025)

CRS-45

Acknowledged Circuit

Split on a

Controlling Issue

Subject

Circuit

Citation

Ruling

Firearms

Ninth Circuit

United States v.

Duarte, 137 F.4th 743

(9th Cir. 2025) (en

banc)

Sitting en banc, the Ninth Circuit held that 18 U.S.C.

§ 922(g)(1), which prohibits the possession of firearms by most

felons, does not violate the Second Amendment, regardless of

whether the felony involves a nonviolent offense. The majority

opinion described the decision as consistent with rulings by

multiple circuits in specific as-applied challenges, but observed a

split with the Third Circuit, which found Section 922(g)(1) to

be unconstitutional as applied to a felon convicted of making

false statements to secure food stamps.

Third Circuit

Range v. Att’y Gen., 124

F.4th 218, 222–23 (3d Cir.

2024) (en banc)

Firearms

Tenth Circuit

Vincent v. Bondi, 127

F.4th 1263 (10th Cir.

2025), petition for cert.

filed, No. 24-1155 (U.S.

May 12, 2025)

A Tenth Circuit panel reaffirmed an earlier decision that 18

U.S.C. § 922(g)(1), which bans the possession of firearms by

most felons, does not violate the Second Amendment

regardless of whether the felony involves a nonviolent offense.

The court’s earlier ruling had been vacated and remanded by

the Supreme Court for reconsideration in light of the Supreme

Court’s intervening decision in the 2023 case of United States v.

Rahimi, which expounded upon text-and-history test used by

the Court to assess whether a law violates the Second

Amendment. On remand, the circuit panel now held that Rahimi

did not abrogate prior circuit precedent upholding Section

922(g)(1). In finding Section 922(g)(1) constitutional, that earlier

precedent had relied on the Supreme Court’s statement in its

2008 decision in Heller v. District of Columbia that its recognition

of an individual right to bear arms under the Second

Amendment did not displace “longstanding prohibitions on the

possession of firearms by felons.” The Tenth Circuit noted

disagreement with the Sixth Circuit’s determination that its

Heller-based precedent was no longer binding in a Second

Amendment challenge to Section 922(g)(1), even though after

employing the Supreme Court’s text-and-history standard as

described in Rahimi, the Sixth Circuit similarly found Section

922(g)(1) to be constitutional.

Sixth Circuit

United States v. Williams,

113 F.4th 637, 648 (6th Cir.

2024)

Firearms

Tenth Circuit

United States v.

Harrison, 153 F.4th

998 (10th Cir. 2025)

A divided Tenth Circuit panel reversed and remanded a district

court decision, which had found the prohibition of controlled

substance users from possessing firearms in 18 U.S.C.

§ 922(g)(3) to be unconstitutional as applied to a user of

marijuana who was not intoxicated at the time of the firearm

possession. Applying the history-based framework provided by

the Supreme Court to assess whether a firearm regulation is

consistent with the Second Amendment, the panel majority

Fifth Circuit

United States v. Connelly,

117 F.4th 269, 278–82 (5th

Cir. 2024)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

found that Section 922(g)(3) addresses a historic and general

social concern about the danger of mixing firearms and

intoxicants and that, according to the nation’s history of firearm

regulation, legislatures may disarm people who are believed to

pose a risk of future danger, not just present danger. The panel

majority identified historical disarmament laws analogous to

Section 922(g)(3) at the time of the nation’s founding, criticizing

the Fifth Circuit’s analysis of the same laws as too narrow

under clarifying precedent. Recognizing the Fifth and the Eighth

Circuits’ findings that Section 922(g)(3) was unconstitutional as

applied to non-intoxicated marijuana users, and the Third

Circuit’s suggestion that it might be constitutional, the panel

majority refrained from drawing a final conclusion and

remanded to the district court to further consider whether

non-intoxicated marijuana users pose a risk of future danger

that would justify their disarmament.

Firearms

CRS-46

Eleventh Circuit

Nat’l Rifle Ass’n v.

Bondi, 133 F.4th 1108

(11th Cir. 2025),

petition for cert. filed,

No. 24-1185 (U.S. May

20, 2025)

A divided en banc Eleventh Circuit rejected a Second

Amendment challenge to a Florida statute that generally bars

persons under 21 years old from purchasing firearms. Relying

on the Supreme Court’s 2022 decision in New York State Rifle &

Pistol Association., Inc. v. Bruen, the court applied the two

analytical steps set forth in that decision: first considering the

plain text of the Second Amendment, and then looking for

historical analogues evincing consistency of the challenged law

with historical tradition. While reaching the same conclusion as

an earlier three-judge panel in the case, the en banc majority’s

application of Bruen differed from the earlier approach by

primarily looking to historical analogues from the Founding era

rather than the Reconstruction period. The en banc majority

found the Florida restriction to be sufficiently analogous to

Founding-era, common law restrictions on minors’ ability to

enter contracts to purchase personal property, including

firearms. The majority acknowledged a split with the Fifth

Circuit regarding relevant analogues for modern-day

restrictions on gun purchases by persons under 21 years of age.

The Fifth Circuit had not placed the same import on the

common law regime and, in looking for firearm-specific

historical analogues in the Founding era, found insufficient

support to sustain a federal statute limiting firearm sales to

persons under 21 against a Second Amendment challenge.

Fifth Circuit

Reese v. Bureau of Alcohol,

Tobacco, Firearms, &

Explosives, 127 F.4th 583,

586 (5th Cir. 2025)

CRS-47

Acknowledged Circuit

Split on a

Controlling Issue

Subject

Circuit

Citation

Ruling

Firearms

Eleventh Circuit

United States v.

Gaines, 154 F.4th 1317

(11th Cir. 2025)

The Eleventh Circuit vacated a defendant’s conviction under 18

U.S.C. § 922(g)(1), often referred to as the felon-in-possession

prohibition, which generally prohibits a person who is convicted

of a crime punishable by imprisonment for a term exceeding a

year from possessing a firearm. The defendant had been

convicted under Alabama law for a crime that was broadly

punishable by more than a year of imprisonment. Another

Alabama law, however, entirely foreclosed imprisonment for

someone with the defendant’s limited prior criminal history.

The panel noted that whether a defendant’s conviction qualifies

under Section 922(g)(1) could be either (a) an offense-specific

inquiry—requiring only that the imprisonment for the

underlying conviction had the possibility of being over a year—

or (b) a defendant-specific inquiry—requiring the length of

potential imprisonment applicable to the specific defendant to

be over a year. The panel read two analogous Supreme Court

decisions to require a defendant-specific inquiry, joining the

Fourth, Eighth, Ninth, and Tenth Circuits, which it observed

had all overturned previous comparable circuit precedents in

light of these Supreme Court decisions. The panel noted that,

even after the Supreme Court’s decisions, the D.C. Circuit

appeared to maintain an offense-specific application of the term

of imprisonment in Section 922(g)(1), although it had not

discussed any of the recent countervailing authority. The

Eleventh Circuit applied the defendant-specific inquiry to the

defendant’s case and overturned his conviction because he

could not have been subject to imprisonment for his violation

of Alabama law and therefore was not federally prohibited from

possessing a firearm.

D.C. Circuit

Schrader v. Holder, 704

F.3d 980, 986 (D.C. Cir.

2013)

Freedom of Information Act

D.C. Circuit

Hum. Rts. Def. Ctr. v.

U.S. Park Police, 126

F.4th 708 (D.C. Cir.

2025)

The D.C. Circuit vacated a lower court’s clawback order that

blocked an organization from using or disseminating

information about U.S. Park Police personnel that was

inadvertently disclosed in response to the organization’s

Freedom of Information Act (FOIA) request. The circuit panel

held that the Park Police failed to satisfy its burden of showing

that disclosure of personnel names would compromise a

substantial privacy interest to support withholding such

information under FOIA Exemption 6 and the FOIA

Improvement Act. The panel further held that the lower court

lacked the power to issue the clawback order because the

order was not an exercise of the court’s inherent authority to

Tenth Circuit

Rocky Mountain Wild, Inc.

v. U.S. Forest Serv., 56

F.4th 913, 930–31 (10th

Cir. 2022)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

manage judicial proceedings. Instead, the panel characterized

the order as an effort to fill a perceived gap in the FOIA statute,

which had resulted in the government being unable to prevent

the dissemination of certain information it had mistakenly

disclosed. The panel observed disagreement with the Tenth

Circuit, which upheld a lower court’s order instructing the

return or destruction of documents inadvertently disclosed in

response to a FOIA request.

CRS-48

Health

First Circuit

United States v.

Regeneron Pharms.,

Inc., 128 F.4th 324 (1st

Cir. 2025)

The First Circuit widened a circuit split over the interplay

between the Anti-Kickback Statute (AKS) and the False Claims

Act (FCA). The AKS includes a criminal prohibition against

certain quid pro quo arrangements involving federal health care

programs. The statute also provides that a claim seeking

payment from a federal health care program “that includes

items or services resulting from a violation” of the AKS is a

false or fraudulent claim giving rise to liability under the FCA.

The First Circuit joined the Sixth and Eighth Circuits in

interpreting the AKS’s “resulting from” language as establishing

a “but-for” causation standard for FCA liability, where the

government must prove that the AKS violation actually caused

the delivery of medical items or services. The panel disagreed

with the Third Circuit’s view that FCA liability only requires a

sufficient causal connection between the AKS violation and the

provision of medical items or services.

Third Circuit

United States ex rel.

Greenfield v. Medco Health

Sols., Inc., 880 F.3d 89, 100

(3d Cir. 2018)

Health

Fourth Circuit

Pharmacy Coal. for

Patient Access v.

United States, 126

F.4th 947 (4th Cir.

2025)

The Fourth Circuit rejected a suit challenging an advisory

opinion by the Office of the Inspector General (OIG) for the

Department of Health and Human Services. The advisory

opinion had concluded that a proposed patient assistance

program for Medicare beneficiaries by a charitable organization

involving a group of drug manufacturers would violate the AntiKickback Statute. The OIG decided that the program, which

would have subsidized Medicare Part D beneficiary co-pays for

oncology drugs produced by participating drug manufacturers,

would violate the Anti-Kickback Statute’s prohibition against

knowingly and willfully offering or paying “any remuneration

(including any kickback, bribe, or rebate)” to “induce” the

purchase of a federally reimbursable health care product. The

panel generally agreed with the IG that the program would

violate the Anti-Kickback Statute’s plain terms because it would

encourage beneficiaries, through the offer of subsidies, to buy

Sixth Circuit

United States ex rel. Martin

v. Hathaway, 63 F.4th 1043,

1051 (6th Cir. 2023)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

federally reimbursable health care goods. The panel decided

that the statute used “induce” in its ordinary sense to refer to

influencing another, and not in the narrower sense sometimes

used in criminal statutes to cover the solicitation or facilitation

of the commission of an unlawful act by another. The panel also

decided that the program’s subsidization of co-pays was a type

of “remuneration” covered by the statute. The panel rejected

the organization’s argument that the statute was meant to apply

only to corrupt payments like kickbacks and bribes. The panel

emphasized that the statute’s text expressly covered “any

remuneration,” regardless of whether or not it was for corrupt

purposes, and the panel acknowledged disagreement with the

Sixth Circuit, which had interpreted the term as having a

narrower scope.

Immigration

CRS-49

Fifth Circuit

United States v. OrtizRodriguez, 145 F.4th

593 (5th Cir. 2025),

petition for cert. filed,

No. 25-5962 (U.S. Oct.

27, 2025)

The Fifth Circuit affirmed an alien’s criminal conviction under 8

U.S.C. § 1326 for illegally reentering the United States after

being ordered removed. The court rejected the defendant’s

collateral attack on his predicate removal order. Relying in part

on immigration authorities’ erroneous determination that he

committed an aggravated felony making him removable, the

defendant claimed that his waiver of judicial review was

unknowing and involuntary and the order was fundamentally

unfair. The court found that the defendant did not make the

requisite showing under 8 U.S.C. § 1326(d) to sustain the

collateral attack. In so doing, the Fifth Circuit acknowledged

two ways its approach to reviewing collateral attacks under

Section 1326(d) differed from that taken by the Ninth Circuit.

First, while the Fifth Circuit placed the burden on the defendant

to show the invalidity of a judicial waiver, the Ninth Circuit has

placed the burden on the government to show by clear and

convincing evidence that the waiver was valid. Second, the Fifth

Circuit disagreed with the Ninth Circuit’s view that a defendant

can establish a due process violation allowing for a collateral

attack by showing that the order was based on a conviction

that later was found not to be an aggravated felony. The Ninth

Circuit implied that such a showing establishes both a due

process violation and prejudice under the statute without

further analysis. The Fifth Circuit believed the alien must also

separately show that he was prejudiced by the error. The panel

found no prejudice because, at the time of the removal order,

Ninth Circuit

United States v. Martinez,

786 F.3d 1227, 1230 (9th

Cir. 2015)

Subject

Circuit

Citation

Ruling

Acknowledged Circuit

Split on a

Controlling Issue

the alien was removable under then-existing Fifth Circuit

precedents.

CRS-50

Immigration

First Circuit

Rosa v. Bondi, 144

F.4th 37 (1st Cir. 2025)

(per curiam)

In a reissued per curiam opinion, the First Circuit remanded an

immigration removal case to the Board of Immigration Appeals

(BIA) after deciding that the BIA applied the incorrect standard

of proof to the Department of Homeland Security’s

determination that the petitioner was an alien. The First Circuit

observed that a 1966 Supreme Court decision said that the

government must establish a person’s alienage by “clear,

unequivocal, and convincing evidence” in removal proceedings

and, absent express language in the governing statute stating

otherwise, this standard governed the removal of aliens like the

petitioner who had not been admitted into the United States.

(The panel left undecided whether the standard also applies

when the government seeks to remove a lawfully admitted

alien.) Joining the Sixth Circuit, the panel held that “clear,

unequivocal, and convincing evidence” is a higher standard of

proof than the “clear and convincing evidence” standard applied

by the BIA. The panel acknowledged a split with the Ninth

Circuit, which has rejected “clear, unequivocal, and convincing

evidence” as a distinct standard of proof from “clear and

convincing evidence.”

Ninth Circuit

Mondaca-Vega v. Lynch,

808 F.3d 413, 420 (9th Cir.

2015) (en banc)

Immigration

First Circuit

Leao v. Bondi, 144

F.4th 43 (1st Cir. 2025)

The First Circuit denied an alien’s petition for review of a

Board of Immigration Appeals (BIA) decision, finding no error

in the BIA’s hardship determination and upholding the denial of

the alien’s application for cancellation of removal. Among other

things, the circuit panel held that the BIA was not required to

explicitly state the standard of revi

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The U.S. Courts of Appeals: Background and Circuit Splits from 2025 · R48846 | Frix