Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (March 27-March 31, 2023)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (March 27-March 31, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(March 27-March 31, 2023)
April 5, 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
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 issued one decision:
 Civil Procedure: In a 6-3 decision, the Supreme Court held that statute of limitations
under the Quiet Title Act is a nonjurisdictional claims-processing rule, meaning that the
time limit may be waived or extended in some circumstances. The Court specified that it
will not interpret a procedural requirement to be jurisdictional unless Congress clearly
states that to be its intent (Wilkins v. United States).
The Supreme Court also granted certiorari in one case:
 Civil Rights: The Supreme Court granted certiorari to review the First Circuit’s holding
that a plaintiff has standing to sue a hotel under the Americans with Disabilities Act for
omitting accessibility-related information from its website, even when the plaintiff does
not intend to visit the hotel. The First Circuit joined a circuit split: in similar cases, the
Eleventh Circuit concluded that constitutional standing requirements were satisfied, while
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the Second, Fifth, and Tenth Circuits held that they were not (Acheson Hotels, LLC v.
Laufer).
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.
 *Criminal Law & Procedure: Adding to a circuit split, the Tenth Circuit held that,
under 18 U.S.C. § 3583(e), a sentencing court may not modify or revoke a term of
supervised release for retributive purposes. The Fourth, Fifth, and Ninth Circuits reached
the same conclusion, while the First, Second, Third, Sixth, and Seventh Circuits permit a
sentencing court to consider retribution in these revocation determinations (United States
v. Booker).
 Criminal Law & Procedure: The Eighth Circuit upheld a conviction for distribution of
child pornography, concluding that posting child pornography on a private Pinterest
board constituted distribution within the meaning of 18 U.S.C. § 2252A(a)(2). The court
reasoned that the private Pinterest board was equivalent to a shared folder because the
defendant knew that at least one other person had access to that board (United States v.
Caruso).
 Criminal Law and Procedure: The Sixth Circuit vacated district court orders that
denied motions for sentencing reductions under the First Step Act. In the 2022 case,
Concepcion v. United States, the Supreme Court held that a district court resolving a First
Step Act motion for a sentencing reduction must consider legal and factual developments
that occurred after the initial sentencing. The Sixth Circuit subsequently clarified that
such changes include a nonretroactive change that would provide a lower Guidelines
range if a defendant was sentenced under current law (United States v. Domenech).
 Criminal Law & Procedure: The Fourth Circuit held that the rule set forth by the
Supreme Court in Rehaif v. United States—that to be convicted of a federal firearms-
possession offense, the defendant must know that he belonged to a category of persons
barred from possessing a firearm—applies retroactively to convictions that occurred prior
to the Supreme Court’s ruling (United States v. Waters).
 Environmental Law: The Fifth Circuit upheld the dismissal of a claim that the U.S.
Army Corps of Engineers (USACE) violated the National Environmental Policy Act
(NEPA). The NEPA requires an agency to produce a supplemental environmental impact
statement (EIS) for environmental harms caused by “major federal action.” The claim
alleged that a spillway diverted floodwaters away from the Mississippi River with
significantly increased frequency, and USACE was required to produce a new EIS. The
court determined that the NEPA did not require a new EIS, holding that continuous
maintenance of the spillway by USACE did not constitute an ongoing major federal
action under 40 C.F.R. § 1502.9(d)(1), even if environmental circumstances had changed
(Harrison County, Mississippi v. United States Army Corps of Engineers).
 Environmental Law: The Fourth Circuit denied review of a decision by the Virginia
Department of Environmental Quality (DEQ) to grant a water quality certification under
the Clean Water Act (CWA) and issue a permit for Mountain Valley Pipeline project. The
court determined that DEQ’s quality certification decision was not arbitrary or capricious,
reasoning that the relevant agencies considered the proposal, asked clarifying questions,

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and satisfied itself that the proposed actions were the least environmentally damaging
practicable alternative (Sierra Club v. State Water Control Board).
 *False Claims Act: The Sixth Circuit upheld the dismissal of a case brought under the
False Claims Act and the Anti-Kickback Statute by interpreting “remuneration” in the
latter statute to include only payments or other transfers of value, rather than including
any act that may benefit the recipient. The court also held that a plaintiff must show but-
for causation between a kickback scheme and the false claim presented—that is, that the
service for which the defendant sought government reimbursement would not have
occurred but for the kickback scheme. The court joined a circuit split on the causation
issue, with the Eighth Circuit requiring but-for causation and the Third Circuit requiring
only that the claim at issue covered items or services that involved illegal kickbacks
(United States ex rel. Martin v. Hathaway).
 First Amendment (Speech): The Fifth Circuit upheld a district court’s ruling that the
defendants—a public school district and associated school officials—did not violate the
First Amendment speech rights of a student-athlete who was disciplined for posting on
social media, while off-campus, a video that allegedly taunted a student-athlete from
another school using a racial slur. The court held, among other things, that the school’s
policy justifying the discipline was not unconstitutionally overbroad or vague
(McClelland v. Katy Independent School District).
 *Immigration: Contributing to a circuit split, the Second Circuit joined the Sixth Circuit
in holding, among other things, that the Department of Justice’s (DOJ’s) regulations
regarding whether an immigration judge may “administratively close” a case are
ambiguous. The court observed that the Third, Fourth, and Seventh Circuits have
concluded that DOJ’s regulations unambiguously authorize such administrative closure
decisions. The Second Circuit disagreed, finding that the regulations did not provide
general authority for administrative closure. The court held that the former Attorney
General’s then-controlling interpretation of the regulations—that they do not authorize
administrative closure except in limited circumstances—was reasonable and therefore
entitled to judicial deference (Garcia v. Garland)
 Immigration: The Fifth Circuit affirmed a district court sentence for illegal reentry under
8 U.S.C. § 1326(b)(2), which provides a maximum sentence of 20 years for unlawful
reentry of someone who was previously deported from the United States after being
convicted of an “aggravated felony.” The appellant, who had previously been convicted
twice for illegal reentry under § 1326(b) and once for burglary, argued that an intervening
Supreme Court case reclassified his burglary conviction as non-aggravated and that his
sentence should be lowered. The court rejected this argument, reasoning that an illegal
reentry offense committed by a person previously removed on the basis of an aggravated
felony conviction is itself an aggravated felony, even though the appellant’s burglary
conviction was not (United States v. Huerta-Rodriguez).
 Labor & Employment: The Fifth Circuit upheld a National Labor Relations Board
(NLRB) ruling brought by the United Auto Workers (UAW) against Tesla that Tesla CEO
Elon Musk posted an unlawful threat on Twitter. The UAW filed an unfair-labor-practice
charge based on a tweet from Musk, alleging that the tweet was a threat—in violation of
Section 8(a)(1) of the National Labor Relations Act—to rescind stock options if
employees unionized. In relevant part, the court upheld the NLRB’s finding that
employees would understand Musk’s tweet as a threat to rescind stock options as
retaliation for unionizing (Tesla v. NLRB).

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 Torts: The Ninth Circuit ruled that the Federal Tort Claims Act’s (FTCA’s) discretionary
function exception, 28 U.S.C. § 2680(a), applied to the U.S. Forest Service when the
agency was given an instruction on consulting private landowners about fire-suppression
activities but was not told specifically how to follow that instruction. Under the FTCA,
the United States waives its sovereign immunity for certain tort claims where harm is
caused by a government employee acting within the scope of their position. The panel
held that the Forest Service’s decisions regarding consultation with landowners during a
wildfire fell within this exception because the lack of a specific mandate gave the Forest
Service a discretionary choice as to how to proceed (Schurg v. United States).

Author Information

Dave S. Sidhu
Madeline W. Donley
Legislative Attorney
Legislative Attorney

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