Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (May 15–May 21, 2023), Part 2

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(May 15–May 21, 2023), Part 2
May 22, 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.
This week’s Congressional Court Watcher is divided into two parts because of the number of notable
decisions issued over the past week. This Sidebar (Part 2) discusses activity by the U.S. courts of appeals
from May 15 through May 21, 2023, while a companion Sidebar addresses Supreme Court decisions from
that period.
Decisions of the U.S. Courts of Appeals
Topic headings marked with an asterisk (*) indicate cases where 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 split with the Second Circuit after it considered the
interplay between Puerto Rico law, a federal statute, and a U.S. treaty when affirming a
district court’s order to compel arbitration in an insurance dispute. The panel held that a
provision in the Convention on the Recognition and Enforcement of Foreign Arbitral
Awards directing courts to channel covered disputes to arbitration was self-executing,
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meaning it was enforceable by U.S. courts without need of implementing legislation
(Green Enter., LLC v. Hiscox Syndicates Ltd. at Lloyd's of London).
• Civil Rights: In a case under the Americans with Disabilities Act (ADA), the Eighth
Circuit held that a railroad company may refuse to allow a worker to bring his Rottweiler
service dog onto moving freight trains. The employee did not claim that the refusal
limited his performance of essential work functions, but claimed that he was denied a
“fringe benefit” and privilege of employment. The circuit court agreed that the ADA
applied to employment discrimination in the provision of benefits, such as denying equal
access to employee lounges and facilities. Even so, the court ruled that allowing a service
dog at work so that an employee could have the same assistance provided by the service
dog outside of work was not a cognizable benefit or privilege of employment under
ADA-implementing regulations (Hopman v. Union Pac. R.R.).
• Election Law: The Fifth Circuit allowed state lawmakers to invoke legislative privilege
to refuse to produce documents related to amendments to Texas voting laws, which the
United States and other plaintiffs claimed were racially discriminatory. The court
described the scope of the legislative privilege as broad, potentially including
communications with third parties, such as lobbyists and advocacy groups, during the
regular scope of legislative business. The court also suggested that exceptional
circumstances, like a federal criminal prosecution, may overcome such claims of
legislative privilege in other cases (La Union Del Pueblo Entero v. Abbott).
• Energy: The D.C. Circuit partially vacated a Pipeline and Hazardous Materials Safety
Administration (PHMSA) rule requiring installation of remote-controlled or automatic
shut-off valves in some new or replaced gas and liquid pipelines. The court held that the
PHMSA did not exceed its statutory authority in issuing the rule. However, the court
decided that the agency unlawfully failed to disclose the economic basis for applying the
rule to “gathering” pipelines that collect raw gas and crude oil from wells, and that
PHMSA failed to make a reasoned determination that regulating gathering pipelines was
appropriate (GPA Midstream Ass'n v. U.S. Dep't of Transp.).
• Environmental Law: The Ninth Circuit affirmed in part and vacated in part lower court
rulings on the Forest Service’s decision to conduct treatments (including thinning and
prescribed burns) on several thousand acres of national forest in Idaho to reduce risks of
wildfire and disease. To satisfy the requirements of the National Environmental Policy
Act (NEPA), the Forest Service invoked a categorical exclusion established in the
Healthy Forests Restoration Act (HFRA). The categorical exclusion created in the HFRA
is limited to “areas in the wildland-urban interface,” which has a specific meaning under
the HFRA. The Ninth Circuit affirmed the lower court’s decision that the Forest Service
had committed a clear error in judgment by relying on an alternate definition of
“wildland-urban interface” contained in a community plan. However, the appellate court
also found that the district court had not correctly interpreted the HFRA and thus vacated
the lower court’s preliminary injunction blocking implementation of the project (All. for
the Wild Rockies v. Petrick).
• Environmental Law: The Ninth Circuit ruled that the U.S. Fish and Wildlife Service’s
(FWS’s) designation of certain areas in southern Arizona as unoccupied critical habitat
for jaguar under the Endangered Species Act (ESA) violated the ESA and Administrative
Procedure Act. The ESA provides that areas occupied by a listed species at the time of
listing may be designated as critical habitat, but that FWS did not have adequate evidence
that the jaguar occupied the designated area. An area not occupied by the species may
also be designated if it is “essential for the conservation of the species.” The court

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concluded that an area must be “indispensable,” not merely beneficial, to the species’
survival and recovery to qualify as “essential,” and that FWS had failed to demonstrate
that the designated areas were indispensable (Ctr. for Biological Diversity v. FWS).
• Environmental Law: The D.C. Circuit rejected a challenge to a decision by the Federal
Energy Regulatory Commission (FERC) to authorize construction of liquefied natural gas
facilities in the Alaska North Slope. Petitioners argued that FERC did not comply with
NEPA and its implementing regulations when authorizing the construction. The court
held that it lacked jurisdiction to consider some of these arguments, where petitioners had
not first exhausted their administrative remedies and, for those claims where the court
had jurisdiction, the plaintiffs’ arguments failed on the merits (Ctr. for Biological
Diversity v. FERC).
• Immigration: The Tenth Circuit held that a “zipper clause” in federal immigration law, 8
U.S.C. § 1252(b)(9), did not strip the district court of jurisdiction over a challenge by an
alien to the United States Citizenship and Immigration Services’ decision to terminate
both her and her son’s refugee status. Section 1252(b)(9) limits federal court review of
issues “arising from any action taken or proceeding brought to remove an alien,” except
as part of the review of a final order of removal. The court held that neither § 1252(b)(9)
nor its implementing regulations covered the termination of refugee status (Mukantagara
v. U.S. Dep't of Homeland Sec.).
• Immigration: The Eleventh Circuit held that an immigration judge and the Board of
Immigration Appeals misconstrued a provision of the Violence Against Women Act of
1994 that governed an alien petitioner’s request for cancellation of removal. The
provision, 8 U.S.C. § 1229b(b)(2)(A)(i), requires the petitioner to show that she “has
been battered or subjected to extreme cruelty” by a spouse or parent. The court held that
the administrative adjudicators erred by reading the term “extreme cruelty” to require
proof of physical abuse, when mental or emotional abuse could also suffice. The panel
remanded the case to the Board for further consideration (Ruiz v. U.S. Att’y Gen.).
• Labor & Employment: A divided Second Circuit allowed a class-action suit by former
employees of a restaurant located within a casino to proceed under the Worker
Adjustment and Retraining Notification Act (WARN Act) and corresponding state law.
The majority held that a genuine issue of material act existed on whether the restaurant
was an “operating unit” under the WARN Act and implementing regulations, in which
case the employees would have been entitled to 60 days’ notice before the closing of the
restaurant. The majority concluded that whether an entity was an operating unit under the
Act was a fact-specific determination, and that whether the restaurant could operate
independently from the casino was not dispositive in deciding if it was operationally and
organizationally distinct from the casino (Roberts v. Genting New York LLC).
• *Labor & Employment: The Sixth Circuit announced a rule on when a district court
should facilitate notice to “similarly situated” current and former workers that might
allow them to join a plaintiff’s suit for unpaid wages under the Fair Labor Standards Act.
The circuit court held that for a district court to facilitate notice, the plaintiff must show a
strong likelihood that those employees are similarly situated. The court characterized this
standard as more stringent than the standard adopted by many district courts, under which
the plaintiff must first make only a modest factual showing that the employees are
similarly situated. The panel also described the announced standard as less stringent than
the standard endorsed by the Fifth Circuit, which requires a showing by a preponderance
of evidence that others are similarly situated (Clark v. A&L Homecare and Training, Ctr.).

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•
• Separation of Powers: The Ninth Circuit held that a district court abused its discretion
by disqualifying the whole U.S. Attorney’s Office in the District of Arizona from
prosecuting a case against multiple criminal defendants, when those defendants alleged
that a single Assistant U.S. Attorney in that Office engaged in potential misconduct. The
circuit court recognized that separation of powers considerations made the judicial
disqualification of an entire U.S. Attorney’s Office an extreme remedy that was available
in extraordinary circumstances not arising here (United States v.Williams).
• Tax: The Ninth Circuit considered the scope of an Internal Revenue Code provision, 26
U.S.C. § 6324(a)(2), which makes certain persons liable for unpaid federal estate taxes.
Section 6324(a) applies to a covered person who “receives, or has on the date of the
decedent’s death, property included in the gross estate.” The issue before the court was
whether “on the date of the decedent’s death” modified only the immediately preceding
verb “has” or also modified “receives”; that is, whether the provision applied to those
who “receive” covered estate property at any time or only “on the date of the decedent’s
death.” Agreeing with the United States, the majority held that the most natural reading of
Section 6324(a)(2), given its structure and punctuation, is that persons who receive
covered estate property, whether at the time of the decedent’s death or any time after, are
personally liable for unpaid estate taxes, subject to the statute of limitations (United
States v. Paulson).

Author Information

Michael John Garcia

Deputy Assistant Director/ALD




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