Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (May 8–May 14, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(May 8–May 14, 2023)
May 15, 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 opinions in five cases:
• Commerce: The Supreme Court ruled that a California law, which bans the sale of whole
pork meat from animals confined in a manner inconsistent with state standards (even if
those animals were held outside of California), did not violate the “dormant” Commerce
Clause in light of its out-of-state effects. While that central holding carried a majority of
the Court, the Justices fractured over how to apply the balancing test set forth in Pike v.
Bruce Church, Inc. to assess when a state regulation unconstitutionally discriminates
against out-of-state products (Nat’l Pork Producers Council v. Ross).
• Criminal Law & Procedure: In a 9-0 ruling, the Court reversed a conviction under the
federal wire-fraud statute, 18 U.S.C. § 1343. The Court rejected the “right to control”
theory of fraud, which treats the deprivation of complete and accurate information
bearing on an economic decision as a type of property fraud (Ciminelli v. United States).
Congressional Research Service
https://crsreports.congress.gov
LSB10964
CRS Legal Sidebar
Prepared for Members and
Committees of Congress

---

Congressional Research Service
2
• Criminal Law & Procedure: The Court reversed the “honest-services” fraud conspiracy
conviction of a former aide to a New York governor, when the defendant, while on a
hiatus from government service, was alleged to have accepted payments from a real-
estate development company to informally influence state policy. The Court concluded
that the jury instructions in the defendant’s trial, describing when a private citizen owes a
fiduciary duty to provide honest services to the public, were impermissibly vague
(Percoco v. United States).
• Immigration: The Court held that a provision in a federal immigration law, 8 U.S.C.
§ 1252(d)(1), did not bar judicial review of petitioner's claim that the Board of
Immigration Appeals engaged in impermissible fact-finding, where the petitioner failed
to first raise that claim in a motion to the Board. Seven Justices held that § 1252(d)(1) is
not jurisdictional, meaning that a court does not need to definitively decide whether its
exhaustion requirements were satisfied before considering the petitioner’s claims. The
Court also unanimously held that a petitioner need not seek discretionary forms of
administrative review, like reconsideration of an unfavorable Board determination, to
satisfy § 1252(d)(1)’s exhaustion requirement (Santos-Zacaria v. Garland).
• Territories: In an 8-1 decision, the Court held that the Puerto Rico Oversight,
Management, and Economic Stability Act (PROMESA) did not abrogate any sovereign
immunity that the Financial Oversight and Management Board of Puerto Rico (Board)
might have. Assuming without deciding that Puerto Rico was shielded from suit in
federal court under the Eleventh Amendment, the Court held that PROMESA did not
clearly state a congressional intent to abrogate any such immunity. The Court remanded
the case for further proceedings below (Fin. Oversight & Mgmt. Bd. for Puerto Rico v.
Centro de Periodismo Investigativo, Inc.).
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.
• Criminal Law & Procedure: The First Circuit vacated the mail and wire-fraud
convictions of two defendants who submitted payments to universities to secure the
admission of their children as athletic recruits as part of the “Varsity Blues” admissions
scandal. The court held that both theories supporting the convictions under 18 U.S.C.
§§ 1341, 1343, and 1346 were flawed. First, the court rejected the government’s theory
that the defendants had deprived the universities of honest services, based on Supreme
Court precedent limiting honest services fraud to the context of bribes and kickbacks.
Second, the court rejected the government’s property fraud theory that the defendants had
deprived the universities of admissions slots. Leaving open the possibility that admissions
slots could be property under the fraud statutes, the court found no basis in the record to
conclude that was the case here. Although the court held that the defendants’ activities
could potentially constitute bribery for purposes of the federal programs bribery statute,
18 U.S.C. § 666, the court reversed those convictions on other grounds (United States v.
Abdelaziz).
• Criminal Law & Procedure: The Second Circuit held that the drug quantity element of
a statutory provision requiring life imprisonment for certain offenders convicted of
engaging in a “continuing criminal enterprise” requires that the quantity be involved in a
single narcotics offense, rather than aggregated from across a series of violations. Under
21 U.S.C. § 848, a person engages in a continuing criminal enterprise if they commit a

---

Congressional Research Service
3
felony narcotics offense and that violation is part of a continuing series of violations in
which the person plays a management role and obtains substantial income or resources.
The statute further provides that a principal leader of an enterprise “shall be imprisoned
for life” if the felony narcotics offense involved a certain amount of drugs or if the
enterprise generated certain gross receipts from illegal drugs. The Second Circuit held
that the district court erred, though harmlessly, by instructing the jury that the drug
quantity element could be aggregated from the continuing series of violations. The
Second Circuit panel divided on a separate issue, with the majority affirming the
defendant’s convictions (United States v. Montague).
• Criminal Law & Procedure: The Eighth Circuit affirmed a defendant’s convictions for
intentionally damaging religious property because of its religious character (18 U.S.C.
§ 247(a)(1)), obstructing by force the free exercise of religious beliefs (18 U.S.C.
§ 247(a)(2)), conspiracy to commit the aforementioned offenses, and carrying or using a
destructive device during or in relation to a crime of violence (18 U.S.C. § 924(c)(1)).
Like other circuits, the court reasoned that § 247(a) is a legitimate exercise of Congress’s
power under the Commerce Clause to punish those who use channels and
instrumentalities of interstate commerce to commit crimes. The court also decided that
§ 247(a)(2) was a predicate violent crime for a § 924(c)(1) conviction (United States v.
Hari).
• Criminal Law & Procedure: The Eighth Circuit held that a person who receives a
sentencing enhancement under U.S.S.G. § 2D1.1(b)(1), for possessing a dangerous
weapon in connection with a drug offense, is ineligible for a reduced sentence under 18
U.S.C. § 3553(f). Section 3553(f) and the corresponding Guideline, U.S.S.G. § 5C1.2,
offer a “safety-valve” for a district court to disregard an applicable statutory minimum if
“less knowledgeable and less culpable offenders … give full and truthful information
about their offenses before sentencing.” The appellate panel concluded that the district
court did not clearly err in denying safety-valve relief, and it rejected arguments based on
the Second, Fifth, and Sixth Amendments (United States v. Voelz).
• Environmental Law: A divided D.C. Circuit panel vacated the Environmental Protection
Agency’s (EPA’s) withdrawal of a prior final determination to regulate perchlorate in
drinking water, holding that the EPA lacked statutory authority to withdraw the
determination. The Safe Drinking Water Act provides that if the EPA determines that a
contaminant meets certain criteria for regulation, it “shall” publish a maximum
contaminant level goal and related regulation within a certain period. The EPA issued a
final determination to regulate perchlorate in 2011, but in 2020 announced that it had
reevaluated the application of the statutory criteria and was withdrawing its final
determination. The circuit panel majority held that the text of the Act does not permit
such withdrawal and that the EPA does not possess inherent authority independent of the
statute to withdraw a final determination (Natural Resources Defense Council v. Regan).
• Environmental Law: The Eighth Circuit held that regulations governing farmers’
requests for reviews of wetland certifications under the Swampbuster Act were not
inconsistent with the governing statute. The Act generally provides that certain farm-
related benefits are not available to farmers who convert wetlands or produce crops on
converted wetlands, and it provides that a prior wetland certification remains in effect
until a person affected by the certification requests review. Implementing regulations
establish procedural requirements for making an effective review request. The circuit
court rejected petitioner’s argument that the review regulations impermissibly narrowed
the right to seek review of a certification under the Swampbuster Act, applying the

---

Congressional Research Service
4
Chevron framework and deferring to the agency’s reasonable interpretation of statutory
language that the court found ambiguous (Foster v. U.S. Dep’t of Agric.).
• Federal Courts: The Federal Circuit held that the U.S. Court of Federal Claims erred in
treating the statutory standing provision in the Tucker Act as jurisdictional. The Tucker
Act gives the Court of Federal Claims jurisdiction over actions by “an interested party”
objecting to the award of a contract by a federal agency. The court applied the Supreme
Court’s decision in Lexmark International, Inc. v. Static Control Components, Inc. for the
premise that statutory standing issues do not implicate a court’s subject-matter
jurisdiction. Thus, the court reasoned, the Court of Federal Claims should not have
addressed the statutory standing issue de novo (CACI, Inc.-Federal v. United States).
• Food & Drug: A divided Ninth Circuit held that plaintiffs’ state-law claims against Wal-
Mart and another company for an allegedly mislabeled dietary supplement were
preempted because the state requirements were not identical with applicable federal
regulations implementing provisions of the Federal Food, Drug, and Cosmetic Act
(Hollins v. WalMart, Inc.).
• Immigration: The D.C. Circuit affirmed the dismissal of the habeas corpus claim of an
alien removed from the United States through the expedited removal process, because his
petition was filed after he was released from government custody. Under 8 U.S.C.
§ 1252(e)(2), an alien may only seek judicial review of an expedited removal order
through habeas corpus proceedings, and the D.C. Circuit understood the federal habeas
statute, 28 U.S.C. § 2241, to require a person to be in government custody at the time of
filing a habeas petition (I.M. v. U.S. Customs and Border Prot.).
• Immigration: A divided Third Circuit held that an alien who had fraudulently entered the
United States under the Visa Waiver Program (VWP), who was granted asylum and
allowed to remain in the United States, and who later lawfully departed and reentered the
United States, was no longer subject to the VWP’s restrictions on relief from removal
when he committed a deportable offense years later. Persons who enter the United States
through the VWP waive the right to challenge their removal except on the basis of
asylum eligibility. The circuit panel majority held that the petitioner’s later departure and
reentry to the United States meant that, if the government sought to terminate his asylum
and order him removed, it would need to do so in a standard, non-VWP proceeding where
he could pursue adjustment of status and other avenues of relief (Kosh Ishmael v. U.S.
Attorney Gen.).
• National Security: The D.C. Circuit held that federal sovereign immunity barred victims
of state-sponsored terrorism from attaching cargo seized by the United States from Iran.
The United States seized oil cargo allegedly belonging to Iran and initiated civil forfeiture
proceedings, selling the cargo with court permission. The victims, who had obtained
money judgments against Iran under an exception to the Foreign Sovereign Immunities
Act, sought to execute their judgments by attaching the proceeds of the sale. The D.C.
Circuit held that federal sovereign immunity barred the attachment because the United
States possessed the funds. The court rejected the victims’ argument that a
“notwithstanding any other provision of law” clause in the Terrorism Risk Insurance Act
of 2002 provided a sufficiently clear waiver of that immunity (Greenbaum v. Islamic
Republic of Iran).

---

Congressional Research Service
5

Author Information

Michael John Garcia
Michael D. Contino
Deputy Assistant Director/ALD
Legislative Attorney


Jimmy Balser
Alexander H. Pepper
Legislative Attorney
Legislative Attorney





Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff
to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of
Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of
information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.
CRS Reports, as a work of the United States Government, are not subject to copyright protection in the United
States. Any CRS Report may be reproduced and distributed in its entirety without permission from CRS. However,
as a CRS Report may include copyrighted images or material from a third party, you may need to obtain the
permission of the copyright holder if you wish to copy or otherwise use copyrighted material.

LSB10964 · VERSION 1 · NEW

---