Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(December 4–December 10, 2023)
December 11, 2023
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
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Decisions of the Supreme Court
Last week, the Supreme Court issued its first opinion of the current term in an argued case:
• Federal Courts: Eight Justices agreed to dismiss as moot a case where the Court was
asked whether a plaintiff had standing to sue a hotel under the Americans with
Disabilities Act (ADA) for omitting accessibility-related information from its website,
even though the plaintiff did not intend to visit the hotel. The plaintiff, who had sued
hundreds of hotels, filed a suggestion of mootness with the Court after a lower court
sanctioned her attorney in some ADA suits for misconduct. In light of the plaintiff’s
voluntary dismissal of her pending cases, her indication that she did not plan to file any
more suits, and the majority’s conclusion that she was not trying to manipulate the
Court’s jurisdiction, the Court decided that it was an appropriate exercise of its discretion
to dismiss the case as moot (Acheson Hotels v. Laufer).
The Court also granted certiorari in one case:
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• Labor & Employment: The Court agreed to hear a case on whether 5 U.S.C.
§ 7703(b)(1)(A)’s 60-day deadline for a federal employee to seek Federal Circuit review
of a final decision of the Merit Systems Protection Board is jurisdictional, meaning that
the deadline is not subject to equitable tolling (Harrow v. Dep’t of Defense).
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 non-uniform application of the law among the circuits.
• *Arbitration: The Ninth Circuit held that a party challenging a delegation clause in an
arbitration agreement must both specifically mention that it is challenging that clause and
make specific arguments in support of that challenge. (A delegation clause is a provision
delegating certain issues regarding arbitrability to the arbitrator rather than a court.) The
court further held that the party may invoke the same arguments to challenge the
delegation provision that it advances in support of its challenge to the arbitration
agreement as a whole, but that the party must make clear why the arguments support each
challenge. A majority of the panel concluded that there is a circuit split on this delegation
issue, with the Ninth Circuit’s standard being more lenient than that adopted by the Sixth
and Eleventh Circuits (Bielski v. Coinbase, Inc.).
• Criminal Law & Procedure: The Third Circuit recognized that the Supreme Court’s
2023 decision in Jones v. Hendrix abrogated conflicting circuit precedent. Applying
Hendrix, the circuit court held that a federal inmate could not file a federal habeas corpus
petition under 28 U.S.C. § 2241 as an end-run around the limits on successive motions
challenging a conviction or sentence under 28 U.S.C. § 2255, where the inmate claimed
that a Supreme Court decision, issued after he filed unsuccessful § 2255 motions, had
rendered his conviction invalid (Voneida v. Johnson).
• Criminal Law & Procedure: The Fourth Circuit held that when a person held in federal
civil commitment for sexual dangerousness under the Adam Walsh Child Protection and
Safety Act (18 U.S.C. § 4248) seeks release through a discharge hearing under 18 U.S.C.
§ 4247(h), the detainee bears the burden of showing by a preponderance of the evidence
that he or she is no longer sexually dangerous (United States v. Vandivere).
• Election Law: A divided Fifth Circuit, sitting en banc, issued a stay of a district court’s
order pending consideration of the lower court’s decision that a Texas redistricting plan
for county commission elections diluted the voting power of Black and Hispanic voters in
violation of Section 2 of the Voting Rights Act (VRA). While neither the Black nor
Hispanic population in the county was large enough to be individually protected under
Section 2, both the district court and a three-judge Fifth Circuit panel applied binding
circuit precedent recognizing that distinct minority groups should be aggregated for
purposes of vote-dilution claims. On November 28, 2023, the Fifth Circuit decided to
rehear the case en banc (Petteway v. Galveston Cnty.).
• Environmental Law: The Ninth Circuit remanded a biological opinion (BiOp) issued by
the U.S. Fish and Wildlife Service (FWS) on the U.S. Army’s use of water from the San
Pedro River Basin. In concluding that the Army’s action would not jeopardize listed
species, FWS relied on the use of a nearby conservation easement to save water and
mitigate the effects of the action on listed species in the basin. The Ninth Circuit held that
Section 7 of the Endangered Species Act and the implementing regulations require the
federal agencies to demonstrate that the effect of a conservation measure intended to

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mitigate an action’s effects on listed species—and not, as the government argued, merely
the measure itself—is “reasonably certain” to occur. The court further held that the
regulations require the government to determine that the beneficial effect is reasonably
certain to occur based on solid, clear, and substantial information (Ctr. for Biological
Diversity v. Haaland).
• Environment: The Tenth Circuit affirmed a district court order requiring a company to
pay the total sum of royalty underpayments assessed in connection with its federal gas
leases, rejecting the company’s argument that a provision of the Federal Oil and Gas
Royalty Simplification and Fairness Act (30 U.S.C. § 1724(h)) shielded it from paying
the full amount. Section 1724(h) allows disputed assessments to be administratively
appealed to the Secretary of the Department of the Interior, who has 33 months to issue a
final decision and, if no decision is issued, “shall be deemed to have issued and granted a
decision in favor of the appellant as to any . . . monetary obligation the principal amount
of which is less than $10,000.” The company argued that, because the Secretary did not
issue a ruling on its adjudicatory appeal in 33 months, the company was not required to
pay nearly $700,000 that it had been assessed through 432 individual obligations, each of
which was for an amount less than $10,000. The Tenth Circuit held otherwise, concluding
that while the term “monetary obligation” in Section 1724(h) is ambiguous, the
surrounding statutory language and expressed congressional intent make clear the term
referred to the aggregate amount the company was assessed, not each individual
component (BP Am. Production Co. v. Haaland).
• Firearms: In a per curium opinion, the Second Circuit affirmed a district court’s denial
of injunctive relief in a suit brought by firearms dealers challenging certain commercial
regulations by the State of New York on the sale of firearms and ammunition. The court
held that the plaintiffs had not shown that the regulations—which required the locking up
of firearms inventory by stores after hours, the installation of security alarms, monthly
inventory checks, employment requirements, periodic onsite inspection by police, and
background checks on prospective buyers before the sale of ammunition—were so
onerous as to violate the Second Amendment by preventing law-abiding citizens from
acquiring firearms. The court also held that the regulations were not preempted by federal
laws establishing recordkeeping duties for federally licensed firearms dealers and that
governed the use of the federal background check system (Gazzola v. Hochul).
• Firearms: In a 261-page opinion addressing four consolidated cases, the Second Circuit
affirmed or vacated aspects of preliminary injunctions halting enforcement of several
provisions of a New York firearms law enacted after the Supreme Court ruled in New
York State Rifle & Pistol Association, Inc. v. Bruen that some earlier state restrictions
violated the Second Amendment. The circuit court reviewed injunctions of state
provisions that (1) added new disclosure requirements for applicants for in-home and
concealed-carry licenses to show they possessed “good moral character,” including
character references and social media accounts; (2) made it a criminal offense for a
person to carry a firearm in specified “sensitive locations,” including places of worship,
even if that person had a concealed-carry license; and (3) made it a crime to enter another
person’s private property, whether generally open to the public (e.g., a gas station or
grocery store) or a personal residence, without the owner or lessee’s express consent. The
plaintiffs argued that these laws violated the Second Amendment and, in some instances,
also the First Amendment. The Second Circuit decided that the plaintiffs were likely to
succeed only in their facial legal challenges to the social media disclosure requirement
and the criminal prohibition on carrying a firearm on private property held open to the
general public. The Second Circuit also upheld the injunction blocking the “sensitive

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location” provision from being applied against a named plaintiff pastor and his church
(Antonyuk v. Chiumento; Hardaway v. Chiumento; Christian v. Chiumento; Flynn v.
Chiumento).
• *Immigration: A three-judge Fifth Circuit panel withdrew an earlier opinion and
substituted a new one that, in effect, resulted in the court switching sides in a circuit split
over when an alien subject to a reinstated removal order may seek judicial review of a
later administrative denial of that alien’s applications for withholding of removal and
protection under the Convention Against Torture (CAT). (That growing circuit split, not
addressed directly by the panel, is discussed in prior editions of the Congressional Court
Watcher.) Under 8 U.S.C. § 1252(b)(1), a “final order of removal” may be appealed to a
U.S. circuit court within 30 days of the date of the order. In its earlier opinion, the panel
concluded the 30-day clock is tied to the earlier reinstatement of removal order, not the
later relief proceedings, and that intervening Supreme Court decisions abrogated
conflicting circuit precedent. The panel changed its position in its new opinion, holding
that the Supreme Court had not negated circuit precedent and that the 30-day clock
begins once the relief proceedings are completed (Argueta-Hernandez v. Garland).
• Immigration: The Eighth Circuit joined the Second, Third, Fourth, and Fifth Circuits in
holding that the Supreme Court’s decision in Esquivel-Quintana v. Sessions—which held
that, in the context of statutory rape offenses, the term “sexual abuse of a minor,” as
employed in Section 101(a)(43)(A) of the Immigration and Nationality Act (INA),
requires the age of the victim to be less than 16—did not overrule the Board of
Immigration Appeals’ (BIA’s) long-standing interpretation of the meaning of that term. In
a 1999 decision, the BIA relied on the definition of “sexual abuse” found in 18 U.S.C. §
3509(a)(8) in concluding that the term “sexual abuse of a minor,” for purposes of the
INA, encompassed a wide range of sexually explicit conduct. The Eighth Circuit
construed Esquivel-Quintana as a narrow holding that did not otherwise address the
BIA’s construction of that term (Aguilar-Sanchez v. Garland).
• Securities: The First Circuit adopted the two-part rule employed by several circuits to
decide if a relief defendant in a securities enforcement action may be subject to equitable
disgorgement. This rule requires the agency to show by a preponderance of the evidence
that (1) the relief defendant, though not accused of wrongdoing in the action, received ill-
gotten funds; and (2) the relief defendant lacks a legitimate claim to the funds (Sec. &
Exch. Comm'n v. Sanchez-Diaz).
• Sovereign Immunity: A divided Ninth Circuit, sitting en banc, affirmed a lower court’s
dismissal of claims brought against the California State Bar because the Bar is an arm of
the State of California and enjoys sovereign immunity from suit in federal court under the
Eleventh Amendment. In doing so, the majority abandoned the circuit’s prior test for
assessing whether an entity is an arm of the state and applied a three-factor test used by
the D.C. Circuit, which considers the state’s intended status for the entity; the state’s
control of the entity; and the entity’s effects on the state treasury (Kohn v. State Bar of
California).
• Speech: The D.C. Circuit narrowed a district court’s gag order prohibiting former
President Donald Trump from making public statements “targeting” certain people
involved in a criminal case alleging that he conspired to overturn and obstruct the
certification of the 2020 election. The circuit court ruled that First Amendment
considerations required limiting the injunction to bar parties and their counsel from either
making or directing others to make public statements about (1) potential witnesses
regarding their possible participation in the proceedings; (2) counsel in the case other

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than Special Counsel Jack Smith; and (3) members of the court and their staff, or family
members of counsel or staff members, if the statements were made with the intent to
materially interfere with the work of counsel or staff in the case, or with knowledge that
such interference would likely result (United States v. Trump).
• Torts: The First Circuit clarified its application of the discretionary function exception to
the Federal Tort Claims Act (FTCA) in a suit brought by a federal prisoner against the
Federal Bureau of Investigation and named agents. The FTCA acts as a limited waiver of
the federal government’s sovereign immunity in tort claims, but the discretionary
function exception insulates the government from liability for claims “based upon the
exercise or performance or the failure to exercise or perform a discretionary function or
duty on the part of a federal agency or an employee of the Government, whether or not
the discretion involved be abused.” The panel held that unconstitutional conduct does not
fall under the discretionary function exception and directed the lower court on remand to
consider whether the plaintiff’s complaint plausibly alleged such conduct (Torres-Estrada
v. Cases).

Author Information

Michael John Garcia
Karen Sokol
Deputy Assistant Director/ALD
Legislative Attorney

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