Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Dec. 19-Dec. 27, 2022)
December 28, 2022
The federal courts issue hundreds of decisions every week in cases involving diverse legal disputes. This
Sidebar series selects decisions from the past week that may be of particular interest to federal lawmakers,
focusing on orders and decisions of the Supreme Court and precedential decisions of the courts of appeals
for the thirteen federal circuits. Selected cases typically involve the interpretation or validity of federal
statutes and regulations, or constitutional issues relevant to Congress’s lawmaking and oversight
functions.
Some cases identified in this Sidebar, or the legal questions they address, are examined in other CRS
general distribution products. Members of Congress and congressional staff may click here to subscribe to
the CRS Legal Update and receive regular notifications of new products and upcoming seminars by CRS
attorneys.
Decisions of the Supreme Court
Last week, the Supreme Court did not issue any opinions or agree to hear any new cases but took action
in a case concerning the executive branch’s “Title 42” policy, which allows immigration authorities to
summarily expel certain aliens arriving from Canada or Mexico (regardless of their country of origin) to
prevent the transmission of the Coronavirus Disease 2019 (COVID-19).
In November 2022, a D.C. federal district court ruled the Title 42 policy was unlawful and directed the
Biden Administration to end the policy. When the D.C. Circuit rejected several states’ request to intervene
in the case to defend the policy’s lawfulness, those states asked the Supreme Court to stay the district
court order and review the case. On December 19, 2022, Chief Justice Roberts issued an administrative
stay to give the Court time to consider the emergency application.
On December 27, 2022, by a 5-4 vote, the Court granted certiorari to consider whether the states may
intervene, and the Court stayed implementation of the district court order pending the Court’s judgment.
The Court indicated that it is not reviewing the merits of the district court’s underlying decision on the
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Title 42 policy’s lawfulness, but only the states’ ability to intervene. The Supreme Court’s action will be
discussed further in the next edition of the Congressional Court Watcher (Arizona v. Mayorkas).
Decisions of the U.S. Courts of Appeals
Topic headings marked with an asterisk (*) indicate cases in which the appellate court’s controlling
opinion recognizes a split among the federal appellate courts on a key legal issue resolved in the opinion,
contributing to a nonuniform application of the law among the circuits.
Arbitration: The Ninth Circuit joined a number of other federal courts of appeals in
concluding that defenses available under the Federal Arbitration Act (FAA) are also
available in certain proceedings governed by the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards, which applies to arbitration awards involving at
least one foreign party. The court held that Article V(1)(e) of the Convention, which
provides a defense to the confirmation of an arbitral award that “has been set aside or
suspended by a competent authority of the country in which, or under the law of which,
that award was made,” incorporates the defenses of domestic arbitral law. Applying that
principle, the court held that it could vacate an award under the relevant provision of the
FAA only if the award shows a “manifest disregard of law or is completely irrational.”
Against that standard, the court upheld the award. Although the court disclaimed the
existence of a circuit split, a panel of the Eleventh Circuit reached a different conclusion
that is now pending rehearing before the Eleventh Circuit sitting en banc (Hayday Farms,
Inc. v. FeeDx Holdings, Inc.).
Criminal Law & Procedure: The Fourth Circuit held that, under the Treaty Between the
United States of America and the United Mexican States on the Execution of Penal
Sentences, U.S. courts retain jurisdiction to revoke the supervised release of a defendant
who was transferred from a U.S. prison to a Mexican prison, released in Mexico, and
then reentered the United States. The treaty provides that when a prisoner is transferred
between the United States and Mexico, the laws of the receiving state (here, Mexico)
govern the completion of the defendant’s sentence, including the terms of supervised
release. In potential tension with the Department of Justice’s interpretation of this
provision, the Fourth Circuit held that U.S. courts retain jurisdiction to enforce the
sentence they imposed if the defendant returns to the United States and violates the
conditions of his U.S. sentence (United States v. Rios).
*Criminal Law & Procedure: A divided Sixth Circuit joined a circuit split over the
meaning of the “safety valve” provision of the First Step Act, 18 U.S.C. § 3553(f), which
allows a court to depart downward from a mandatory minimum sentence if a criminal
defendant does not have, among other things, “more than 4 criminal history points ... a
prior 3-point offense, ... and a prior 2-point violent offense.” The court agreed with the
Fifth, Seventh, and Eighth Circuits in holding that a defendant who satisfies any one of
the three conditions is disqualified from safety-valve relief. The Ninth and Eleventh
Circuits have held, however, that a defendant is only ineligible for safety-valve relief if
the defendant satisfies all three conditions (United States v. Haynes).
*Criminal Law & Procedure: A divided en banc Sixth Circuit affirmed a district court’s
denial of compassionate release under 18 U.S.C. § 3582(c)(1)(A), ruling that a
nonretroactive change in sentencing law was not an extraordinary and compelling reason
for a sentence reduction. The court reasoned that, while the First Step Act altered the
process for filing compassionate release motions, it did not change the substantive
requirements for obtaining compassionate release. This decision contributes to a circuit
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split over the discretion afforded to district courts when ruling on compassionate release
motions (United States v. McCall).
*Criminal Law & Procedure: The Seventh Circuit maintained its position in a circuit
split over the meaning of “controlled substance” in the U.S. Sentencing Guidelines,
holding that a controlled substance” in the guidelines is not limited to its definition in the
Controlled Substances Act (CSA). The court observed that the U.S. Sentencing
Commission had yet to signal whether it intended to incorporate the CSA definition into
the guidelines (United States v. Jones).
Criminal Law & Procedure: Joining other circuits, the Eighth Circuit held that 18
U.S.C. § 3599, which permits federal courts to authorize funding for legal representation
and reasonably necessary services to an indigent defendant facing the death penalty, does
not provide federal courts with jurisdiction to oversee funded services. The court vacated
a district court’s order directing state officials to comply with a defendant’s request to
facilitate medical testing in support of his clemency petition (Tisius v. Vangergriff).
Criminal Law and Procedure: Examining the forced labor statute, which prohibits
knowingly providing or obtaining labor through force, threat of force, physical restraint,
or abuse of legal process, the Ninth Circuit held that these methods are factual means by
which a crime is committed, rather than legal elements of the crime. (Juries must
unanimously convict criminal defendants of each element of a crime, but they need not
be unanimous on the factual means by which a defendant’s conduct satisfies each
element.) The court held that a jury therefore need not be unanimous as to which factual
means of forced labor the defendant used. The Ninth Circuit relied on the plain language
of the forced labor statute and its previous interpretation of the related sex trafficking
statute (United States v. Barai).
Criminal Law & Procedure: The Ninth Circuit joined multiple federal courts of appeals
in recognizing that a conviction under 18 U.S.C. § 1958(a) for soliciting the use of
facilities of commerce with the intent to commit murder is categorically not a “crime of
violence” punishable under 18 U.S.C. § 373(a), a federal solicitation statute. This is
because § 1958(a) does not require that a defendant enter into a murder-for-hire
agreement, that the defendant carry out or otherwise attempt to accomplish his or her
criminal intent, or that the contemplated murder be attempted or accomplished by another
person. The Ninth Circuit did agree with other circuits, however, in holding that 18
U.S.C. § 844(d), which prohibits the transportation of an explosive with knowledge or
intent to kill, injure, or intimidate, is a crime of violence under § 373(a) (United States v.
Linehan).
Environmental Law: The Ninth Circuit granted in part and denied in part petitions for
review challenging the Environmental Protection Agency’s (EPA’s) 2019 decision to
amend the registration of the pesticide sulfoxaflor to remove conditions from a 2016
registration that limited its use. The court held that the EPA violated the Endangered
Species Act’s consultation requirements by failing to determine whether sulfoxaflor may
affect endangered or threatened species or their designated critical habitats. The court
also held that the EPA had not satisfied the notice-and-comment provisions of the Federal
Insecticide, Fungicide, and Rodenticide Act because it failed to seek the public’s input on
the amended registration. The court remanded the decision to the EPA to address the
statutory deficiencies, but the majority declined to vacate the amended registration while
EPA reconsiders its decision, citing concerns that vacatur may cause more harm to the
environment and disrupt the agricultural industry (Center for Food Safety v. Regan).
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Environmental Law: The D.C. Circuit vacated a dam license issued by the Federal
Energy Regulatory Commission (FERC) after finding that the statutory prerequisites had
not been met. Under the Clean Water Act, a dam operator must obtain a state certification
for its project before FERC can issue a license. The statute allows a state to either deny
certification, grant the request with or without conditions that FERC must incorporate in
the license, or waive certification by “fail[ing]” or “refus[ing]” to act on the request. In
this case, Maryland originally certified the request at issue with significant environmental
protection conditions. Following litigation, Maryland and the operator entered into a
settlement in which Maryland agreed to waive certification. The court held that Maryland
could only waive certification by failing or refusing to act; it could not affirmatively
waive certification after granting it (Waterkeepers Chesapeake v. FERC).
False Claims Act: In a qui tam action (i.e., a lawsuit filed by a private individual called a
relator on behalf of the government), the First Circuit held that relators may not recover
reasonable attorneys’ fees under the False Claims Act (FCA) when they privately agree to
receive funds from another relator who may recover based on its own claims against the
defendant. Additionally, because the provision applies only when the government
“proceeds with an action,” the court held that a relator may not receive attorneys’ fees for
a claim in which the government declined to intervene, reading “action” as synonymous
with “an individual claim” (United States ex rel. Lovell v. Athenahealth, Inc.).
Health: The Second Circuit held that it lacked subject-matter jurisdiction over a
hospital’s lawsuit disputing its Medicare reimbursement rate for “uncompensated care,”
that is, healthcare provided to uninsured patients who cannot pay. Under the Medicare
Act, the Secretary of Health and Human Services calculates reimbursement rates for such
services based on “estimates” of certain factors. The Act also provides that “there shall be
no administrative or judicial review ... of . . . any estimate of the Secretary for purposes
of determining the factors” used to calculate this reimbursement rate. The Second Circuit
held that statutory language precluding judicial review applies to any challenge to the
“validity” of agency action, including, as in this case, a purely procedural challenge to the
Secretary’s decision to adopt a certain methodology without notice-and-comment
rulemaking. The court interpreted the canon favoring judicial review of executive action
narrowly, as applying only at the end of a court’s textual analysis to resolve a “grievous
ambiguity or uncertainty in the statute.” The court also refused to consider an extra-
statutory challenge to the agency’s action as ultra vires, or beyond the agency’s authority,
holding that such challenges are available only where the preclusion of judicial review is
implied rather than express (Yale New Haven Hospital v. Becerra).
Immigration: The Eleventh Circuit denied in part and dismissed in part a petition for
review of a Board of Immigration Appeals (BIA) decision that a petitioner was subject to
removal for committing an aggravated felony under the Immigration and Nationality Act
(INA). The petitioner challenged (1) a decision by the Attorney General, Matter of
Thomas, that state court orders modifying a criminal sentence do not remove the
immigration consequences of a criminal conviction if the modification is based on
reasons unrelated to the merits of the underlying case; and (2) the BIA’s decision in the
petitioner’s case applying Matter of Thomas. The Eleventh Circuit first held that
Congress gave the Attorney General broad authority to decide legal questions arising
under the immigration laws. Second, the court held that the Attorney General’s
interpretation of the INA provision defining a “conviction” was reasonable and entitled to
deference under the framework set forth in Chevron U.S.A., Inc. v. Natural Resources
Defense Council. Accordingly, the court held that the petitioner was an aggravated felon
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within the meaning of the INA, notwithstanding a state court’s modification of his
criminal sentence (Edwards v. U.S. Attorney General).
Labor & Employment: A divided Fifth Circuit affirmed a preliminary injunction against
the Biden Administration’s executive order mandating that federal contracts require
contractors to ensure that their workforces are vaccinated against COVID-19 (unless a
worker is entitled to an exception). The court held that the order ran afoul of the major
questions doctrine, which counsels against interpreting general delegations of agency
authority as empowering agencies to pursue policies of economic and political
significance that are inconsistent with the agencies’ historical assertions of authority.
Applying the doctrine here to the President, rather than an agency, the Fifth Circuit held
that the Procurement Act did not authorize the President to issue the vaccine mandate.
The preliminary injunction halts enforcement of the policy against only the plaintiff
states: Louisiana, Indiana, and Mississippi (Louisiana v. Biden).
*Religion: The D.C. Circuit reversed in part the denial of a preliminary injunction for
three members of the Sikh faith after the U.S. Marine Corps refused to accommodate
their religious practices during initial training, thus preventing them from enlisting.
Disagreeing with several sister circuits, the court declined to apply a heightened standard
for preliminary relief where, as here, an injunction—allowing the plaintiffs to complete
initial training before the litigation reached the merits—would amount to irreversible
relief. The court applied the traditional preliminary injunction standard to two plaintiffs
who had expressed a desire to join the Marines immediately. The court ruled that the two
had shown (1) a likelihood of success on their claim under the Religious Freedom
Restoration Act; (2) that they have suffered and continue to suffer irreparable, grave,
immediate, and ongoing injuries as a result of their faith; and (3) that the equities and the
public interest weighed heavily in favor of granting an injunction. The court remanded
for reconsideration of the request of the third plaintiff, who had deferred his enlistment
plans (Singh v. Berger).
Securities: The Ninth Circuit reversed in part a dismissal of a lawsuit under § 12(a)(2) of
the Securities Act of 1933. Section 12(a)(2) imposes liability on any person who offers or
sells a security by means of a prospectus or oral communication where the
communication contains an untrue statement of material fact or omits to state a material
fact necessary to make a statement not misleading. Here, the defendants posted about
securities on a social media account, and the court held that § 12 contained no
requirement that a solicitation be directed or targeted to a particular plaintiff. The court
reasoned that the Securities Act contains broad language as to whom a security holder
may sue for misleading statements or omissions (Pino v. Cardone Capital, LLC).
Securities: The D.C. Circuit denied a petition for review from the Department of Labor’s
Administrative Review Board concerning the extraterritoriality of Section 806 of the
Sarbanes-Oxley Act (SOX). Applying the presumption against extraterritoriality, the
court held that SOX’s text, context, and legislative history do not contain a clear,
affirmative indication that the statute applies abroad. Ruling that the statute thus clearly
lacked extraterritorial application, the court reasoned it did not need to decide whether the
Administrative Review Board was entitled to Chevron deference (Garvey v.
Administrative Review Board).
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Author Information
Michael D. Contino
Abigail A. Graber
Legislative Attorney
Legislative Attorney
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