Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (May 1, 2023–May 7, 2023)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (May 1, 2023–May 7, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(May 1, 2023–May 7, 2023)
May 9, 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
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attorneys.
Decisions of the Supreme Court
Last week, the Supreme Court granted certiorari in two cases:
 Administrative Law: The Court agreed to review a decision of the D.C. Circuit to
consider whether to overrule the administrative law doctrine known as Chevron
deference, established by the Court in Chevron U.S.A., Inc. v. Natural Resources Defense
Council, Inc., or clarify whether a statute’s silence regarding an agency’s authority to
take a particular action constitutes an ambiguity requiring deference to the agency under
Chevron (Loper Bright Enter. v. Raimondo).
 Financial Regulation: The Court will review a decision of the Second Circuit regarding
whistleblowers who report financial wrongdoing and their protections under the
Sarbanes-Oxley Act. The Court will consider whether, under the burden-shifting
framework for cases brought under the statute, a whistleblower must prove his employer
acted with a “retaliatory intent,” or whether the lack of retaliatory intent is part of the
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affirmative defense on which the employer bears the burden of proof (Murray v. UBS
Sec., LLC).
The Supreme Court also ordered additional briefing in an argued case:
 Election Law: In Moore v. Harper, the Supreme Court is considering whether a state
court is constitutionally permitted to nullify a map created by a state legislature
evidencing redrawn congressional districts and to replace it with one devised by the state
court. The North Carolina Supreme Court originally struck down a redistricting plan
adopted by the state legislature and ordered a lower court to approve a new map. The trial
court ultimately approved a map drawn by three court-appointed experts. The U.S.
Supreme Court granted review of the decision in June 2022 and heard oral argument in
December 2022. The composition of the North Carolina Supreme Court changed
following the November 2022 elections. The newly configured state supreme court
reheard the underlying case, rejected its earlier rulings, and in an April 28, 2023, opinion
held that North Carolina courts may not nullify a redistricting map on the basis of
partisan gerrymandering. The U.S. Supreme Court invited the parties and the Solicitor
General to file supplemental briefs on how the April 28 order affects the Supreme Court’s
jurisdiction. Briefs are due May 11 (Moore v. Harper).
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 First Circuit affirmed a district court’s denial of defendants’ motion to
dismiss or compel arbitration in a lawsuit brought by distributors of baked goods against
the companies who bake the goods. The court held that the distributors fell within the
Section 1 exemption to the Federal Arbitration Act (FAA) as transportation workers
engaged in interstate commerce. In accordance with its March 2023 decision in Fraga v.
Premium Retail Services and the Supreme Court’s decision in Southwest Airlines
Company v. Saxon, the court held that the distributors’ work constituted “transportation”
even if their employer was not engaged in the transportation industry. This interpretation
of both Saxon and the FAA conflicts with the Second Circuit, which held in a case
involving the same defendants that working in the transportation industry is a necessary
condition to qualify for the Section 1 exemption. The court also held that Section 1
applies to workers who perform transportation work “frequently,” regardless of their
other responsibilities or formal job descriptions (Canales v. CK Sales Co., LLC).
 Communications: The Sixth Circuit held that the Federal Communication Commission’s
(FCC’s) authority over the Universal Service Fund pursuant to Section 254 of the
Communications Act does not violate the nondelegation or private nondelegation
doctrines, echoing the conclusions reached by other circuit courts in similar cases. The
FCC promotes universal access to telecommunications service via the Fund, which is
funded by required contributions from covered telecommunications carriers calculated in
part based on data gathered by a private not-for-profit organization, the Universal Service
Administrative Company (USAC). Like the Fifth and D.C. Circuits, the Sixth Circuit
held that Section 254 provides an intelligible principle and so does not violate the
nondelegation doctrine. The Sixth Circuit also held, in agreement with the Fifth Circuit,
that there is no private nondelegation doctrine violation because USAC is subordinate to
the FCC and does not exercise decisionmaking power (Consumers’ Research v. FCC).

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 Criminal Law & Procedure: The Second Circuit joined several other circuits in holding
that the mandatory 35-year minimum sentence in 18 U.S.C. § 2251(e) for recidivists with
two or more federal or state predicate convictions “relating to the sexual exploitation of
children” is not limited to offenses involving the production of child pornography. An
individual who was convicted of violating 18 U.S.C. § 2251(a) for prior state convictions
for sexual assault of a minor and file sharing child pornography argued that “relating to
the sexual exploitation of children” covers only production offenses. The Second Circuit
joined the Third, Fourth, Sixth, and Eighth Circuits in rejecting this interpretation based
on the text and context of the statute (United States v. Winczuk).
 Criminal Law & Procedure: The Fourth Circuit held that a preponderance-of-the-
evidence standard applies when a district court considers whether to revoke a conditional
discharge in a federal civil commitment proceeding under 18 U.S.C. § 4246(f). Section
4246 sets forth the process for civilly committing inmates due to be released from federal
custody or incapable of standing trial. While § 4246(d) expressly requires clear-and-
convincing evidence of dangerousness for an initial commitment, the court held that the
less demanding preponderance-of-the-evidence standard applies when a defendant
previously committed and conditionally discharged faces recommitment under § 4246(f)
(United States v. Perkins).
 Speech: The Ninth Circuit held that a Member of Congress did not violate the First
Amendment by urging a bookseller to stop promoting the plaintiffs’ book. In a letter to
Amazon’s chief executive, the Member raised concerns about the company’s potential
promotion of certain books about COVID-19, including one authored and published by
the plaintiffs, through its search function and “Best Seller” lists. The Member asked
Amazon to review and publicly disclose the extent to which its algorithms direct
consumers to “COVID-19 misinformation” and develop a plan to modify its algorithms
to stop any such practice. The Ninth Circuit determined that the letter contained
permissible persuasion rather than unlawful coercion because, among other reasons, it
was framed as a request and not a demand and did not threaten specific enforcement
action. The court affirmed the district court’s denial of a preliminary injunction that
would have required the Member to retract the letter and refrain from sending similar
communications in the future (Kennedy, Jr. v. Warren).
 Torts: The Fourth Circuit joined several other circuits in holding that a provision of the
Federal Tort Claims Act waiving sovereign immunity in detention-of-goods cases applies
only when the property at issue is seized solely for the purpose of forfeiture. Under 28
U.S.C. § 2680(c), the United States does not waive sovereign immunity for claims
concerning the detention of goods by law enforcement officers, but an exception applies,
and immunity is waived, if “the property was seized for the purpose of forfeiture” and
other conditions are met. The court held that when property is seized pursuant to both a
criminal warrant and a civil forfeiture warrant, the exception does not apply, and the
United States is immune (Myers v. Mayorkas).
 Veterans: The Federal Circuit held that the Secretary of Veterans Affairs may assign
veterans disability ratings of zero percent in response to claims for benefits. The plaintiff
relied on statutes setting forth 10 grades of disability, between 10 percent and 100 percent
(38 U.S.C. §§ 1155 and 1114), for the premise that the Secretary must issue a disability
rating of at least ten percent. The court rejected this premise, citing Congress’s “long-
standing practice” of recognizing certain injuries as noncompensable and reasoning that
Congress evinced no intent to limit the Secretary’s authority to issue zero-percent ratings
in §§ 1155 and 1114 (Frazier v. McDonough).

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Author Information

Jimmy Balser
Alexander H. Pepper
Legislative Attorney
Legislative Attorney

Michael D. Contino

Legislative Attorney

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