Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Dec. 27, 2021–Jan. 2, 2022)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (Dec. 27, 2021–Jan. 2, 2022)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(Dec. 27, 2021–Jan. 2, 2022)
January 3, 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 of the 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 contact the author
to subscribe to the CRS Legal Update newsletter and receive regular notifications of new products
published by CRS attorneys.
Decisions of the Supreme Court
No Supreme Court opinions were issued last week, and no new cases were added to the Court’s docket.
Decisions of the U.S. Courts of Appeals
 Civil Liability: The False Claims Act (FCA) not only empowers the federal government
to bring claims against those who defraud the United States, but also allows private
parties to bring such claims on the government’s behalf and recover a share of the
proceeds in qui tam actions. The Eleventh Circuit concluded that the FCA does not
require the United States to have formally intervened in a qui tam action in order to seek
dismissal of the action, even when the United States had earlier declined to intervene in
the case. Any constraints on the government’s ability to seek dismissal are found outside
the FCA. Two members of the three-judge circuit panel joined a concurring opinion
observing that this outcome was required by binding circuit precedent recognizing a
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similar principle regarding the government’s ability to file a motion to settle a qui tam
action without first intervening, but argued that this precedent should be overturned by
the Eleventh Circuit sitting en banc (United States v. Republic of Honduras).
 Civil Liability: The Eleventh Circuit held that damages and statutory penalties awarded
in a qui tam action under the FCA are subject to the Eighth Amendment’s prohibition on
excessive fines, even if the United States is not a formal party to the case. The court
reasoned that qui tam actions serve to enforce the United States’ interests under the FCA,
and the government shares in the proceeds. Still, the circuit court affirmed the verdict and
monetary award in the case before it, concluding the award imposed in the qui tam action
did not violate the Excessive Fines Clause (Yates v. Pinellas Hematology & Oncology,
P.A.).
 Communications: The D.C. Circuit largely rejected challenges to a Federal
Communications Commission (FCC) order that opens the 6 gigahertz (GHz) band of
radiofrequency spectrum to unlicensed devices (e.g., routers and connected devices like
laptops and smartphones), subject to certain safeguards to prevent interference with
licensees using the 6 GHz band (e.g., commercial communication providers, public safety
operators, and network broadcasters). The panel concluded the petitioners generally
failed to provide a basis for questioning the FCC’s conclusion that its order’s safeguards
protect against a significant risk of harmful interference. However, the panel concluded
the FCC had not adequately responded to a request by licensed radio and television
broadcasters that it reserve a portion of the 6 GHz band for exclusive use by mobile
licensees; the court remanded the case to the FCC to provide further explanation on that
issue (AT&T v. FCC).
 Immigration: The First Circuit reviewed a district court’s grant of declaratory and
injunctive relief to a class of aliens held in immigration custody under 8 U.S.C.
§ 1226(a), which permits detention of persons during the pendency of removal
proceedings, but allows their release on bond or their own recognizance unless otherwise
subject to mandatory detention. The panel affirmed the district court’s declaratory
judgment that those held under § 1226(a) are entitled to a bond hearing at which the
government, to support the detainees’ continued detention, bears the burden of proving
the alien either (1) is a danger to others (by clear and convincing evidence) or (2) is a
flight risk (by a preponderance of evidence). However, the divided appellate panel
concluded the district court was barred by a different statute, 8 U.S.C. § 1252(f)(1), from
granting class-wide injunctive relief, likely meaning such claims would need to be
adjudicated on an individual basis (Brito v. Garland).
 Insurance: In the wake of the Coronavirus Disease 2019 (COVID-19) pandemic, several
courts have considered challenges to insurance-claim denials brought by businesses
whose properties were closed because of government shutdown orders and other
measures to deter the spread of the disease. The Second Circuit joined at least six other
circuits in concluding that, under relevant state laws governing insurance claims for
“direct physical loss of property,” a suspension of operations due to COVID-19-related
measures would not give rise to a claim because the suspension was not due to a physical
alteration to the covered property (10012 Holdings, Inc. v. Sentinel Insurance Co.).
 International Law: The D.C. Circuit affirmed a district court’s enforcement of a foreign
arbitral award against the Ukraine under the Convention on the Recognition and
Enforcement of Foreign Arbitral Awards (New York Convention), which generally
requires courts of contracting parties to recognize and enforce commercial arbitration
agreements made in the jurisdiction of other contracting parties, subject to limited

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 exceptions. The panel rejected various arguments against enforcing the award, including
that non-enforcement would be consistent with the New York Convention’s recognition
that a country may deny enforcement on public policy grounds. Observing that this
exception has been construed narrowly to situations where the enforcement would violate
a party’s most basic notions of morality and justice, the panel held the United States does
not have a public policy against enforcing arbitral awards predicated solely on an award’s
alleged violation of foreign law (Tafnet v. Ukraine).
 Tax: The Eleventh Circuit reversed a Tax Court order that barred petitioners from
carrying over charitable deductions related to the donation of a conservation easement,
after rejecting the Commissioner of the Internal Revenue Service’s interpretation of the
governing regulation, 26 C.F.R. § 1.170A-14(g)(6)(ii), as arbitrary and capricious in
violation of the Administrative Procedure Act. The court reached this conclusion because
significant comments were not addressed during the notice-and-comment process prior to
promulgation of the regulation (Hewitt v. Commissioner of IRS).

Author Information

Michael John Garcia

Section Research Manager

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