The U.S. Courts of Appeals: Background and Circuit Splits from 2025
Congressional research reportFeb 6, 2026
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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”).
Congressional Research Service
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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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