Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (June 12–June 18, 2023)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (June 12–June 18, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(June 12–June 18, 2023)
June 20, 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 issued five decisions in cases for which oral arguments were heard:
• Civil Procedure: The Court in an 8-1 decision held that 31 U.S.C. § 3730(c)(2)(A)
enables the United States to obtain dismissal of a qui tam action brought under the False
Claims Act (FCA), even after the government initially declined to proceed with an FCA
suit. (The FCA permits private parties in qui tam actions to bring claims on the
government’s behalf against those who defraud the United States, and thereby recover a
share of the proceeds of the action.) The Court also held that Federal Rule of Civil
Procedure 41(a) sets the standard for district courts to review motions to dismiss under §
3730(c)(2)(A): a standard the government will almost always satisfy (United States ex
rel. Polansky v. Executive Health Resources, Inc.).
• Criminal Law & Procedure: The Court unanimously held that a criminal sentence
under 18 U.S.C. § 924(j), which applies to drug traffickers or those who commit violent
crimes and cause death by using or carrying a firearm, may run concurrently or
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consecutively with another sentence. The Court ruled that the consecutive-sentence
mandate under 18 U.S.C. § 924(c)(1)(D)(ii) does not apply to sentences under § 924(j)
(Lora v. United States).
• Criminal Law & Procedure: A unanimous Court held that if a criminal defendant is
improperly tried before a jury drawn from the wrong district, the government is
constitutionally permitted to seek retrial in the appropriate venue (Smith v. United States).
• Indian Law: In an 8-1 judgment, the Court resolved a circuit split and held that Congress
unequivocally abrogated tribal sovereign immunity in the Bankruptcy Code (Lac du
Flambeau Band of Lake Superior Chippewa Indians v. Coughlin).
• Indian Law: In consolidated cases, the Court, in a 7-2 decision, rejected constitutional
challenges to provisions of the Indian Child Welfare Act (ICWA) that regulate child
custody proceedings involving Indian children and establish a preference for placing
those children with Indian families or institutions ahead of unrelated non-Indians or non-
Indian institutions. The Court held the ICWA provisions were a valid exercise of
Congress’s power under the Indian Commerce Clause and did not “commandeer” state
courts and officials to implement federal Indian policy in violation of the Tenth
Amendment. The Court declined to reach plaintiffs’ claims that ICWA violated
constitutional equal protection and non-delegation principles, concluding that plaintiffs
lacked standing to bring such claims (Haaland v. Brackeen; Cherokee Nation v.
Brackeen; Texas v. Haaland; Brackeen v. Haaland).
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.
• Administrative Law: The Tenth Circuit held that plaintiffs were not entitled to a
preliminary injunction prohibiting issuance of a coal-mining permit because neither the
citizen-suit provision of the Surface Mining Control and Reclamation Act (SMCRA), 30
U.S.C. § 1270, nor the Administrative Procedure Act (APA), 5 U.S.C. § 702, allows
challenging the Department of the Interior’s issuance of a coal-mining permit as arbitrary
and capricious. The court held that Section 1270 of the SMCRA only permitted suits to
enforce non-discretionary duties, and the Department of the Interior had performed all
non-discretionary duties imposed by the relevant sections of the statute. The court also
held the APA was unavailable as a basis for suit because another provision of the
SMCRA, 30 U.S.C. § 1264, provided an avenue for such a challenge (Citizens for
Constitutional Integrity v. United States).
• Bankruptcy: The Fourth Circuit joined two other circuit courts in ruling that Chapter 13
debtors who earn more than the median income may deduct the actual costs of their
mortgage payments when calculating their disposable income. Under Chapter 13, debtors
may obtain a discharge so long as they pay their creditors a portion of their monthly
income, a figure reached by applying the Bankruptcy Code’s “means test.” The means
test allows debtors to reduce their monthly income for certain expenses, and the court
held that mortgage payments constituted one of those expenses, i.e., monthly payments
on account of secured debts. The court rejected the trustee’s argument that debtors may
only deduct “reasonable” amounts, explaining that Congress added the means test to the
Bankruptcy Code with the intent of limiting bankruptcy courts’ discretion to calculate
debtors’ expenses on a case-by-case basis (Bledsoe, III v. Cook).

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• Civil Procedure: A divided Fifth Circuit reversed a district court’s decision that
dismissed Texas for improperly splitting its claims and dismissed Missouri for lack of
standing in a suit challenging the Biden Administration’s policy ending new border wall
construction. The court remanded the case to the district court to consider the states’
motion for a preliminary injunction in an expeditious manner (State of Missouri v. Biden).
• Civil Rights: The Ninth Circuit unanimously held that Title IX’s prohibition against
discrimination “on the basis of sex” in education programs that receive federal financial
assistance includes a prohibition against discrimination based on sexual orientation,
including perceived sexual orientation. The court applied the Supreme Court’s reasoning
in Bostock v. Clayton County, which interpreted similar language in Title VII. The Ninth
Circuit joined the Fourth Circuit in extending Bostock’s analysis to Title IX (Grabowski v.
Arizona Board of Regents).
• Consumer Protection: A divided Ninth Circuit affirmed the denial to enjoin Nevada
Senate Bill 248 (S.B. 248), a law that requires debt collectors to provide written
notification to debtors 60 days before taking any action to collect a medical debt. The
court rejected plaintiffs’ arguments that both the Fair Credit Reporting Act (FCRA) and
the Fair Debt Collection Practices Act (FDCPA) preempted S.B. 248. The court held that
the FCRA neither expressly nor impliedly preempts S.B. 248 because the state law does
not interfere with the FCRA’s provision on reporting requirements and it does not
interfere with debt collectors’ responsibilities to furnish fair and accurate information to
reporting agencies. The court held that there was no FDCPA preemption because S.B.
248’s 60-day notice provision does not constitute an attempt to collect a debt (Aargon
Agency, Inc. v. O’Laughlin).
• Criminal Law and Procedure: The Third Circuit held that the crime of robbery under
the Hobbs Act, 18 U.S.C. § 1951, does not contain a specific intent element present in
common law definitions of robbery. The court had previously held that the Hobbs Act did
import common law definitions of the elements of robbery, including that a defendant
have the specific intent to steal and permanently deprive the owner of property. The court
reconsidered that decision, determining that more recent Supreme Court precedent
required a stricter textual analysis that was inconsistent with the Third Circuit’s prior
reasoning. Holding that Hobbs Act robbery is a general intent crime, the court resolved a
circuit split and aligned itself with its sister circuits (United States v. Stevens).
• Criminal Law and Procedure: The Sixth Circuit held that defendants bear the burden of
proving they are not a substantial risk to the public when the government seeks to revoke
conditions of release following a verdict of not guilty by reason of insanity. After such a
verdict, a defendant may be publicly released subject to various conditions. If those
conditions are violated, the government may seek a return to custody under 18 U.S.C. §
4243(g) if the defendant’s continued release would be a substantial risk to the public. The
statute does not indicate which party bears the burden to prove the defendant is or is not a
substantial risk, and the court found that the language, history, and structure of the statute
placed the burden on the defendant (United States v. Williams).
• *Criminal Law & Procedure: The Seventh Circuit affirmed the conviction of a former
mayor for, inter alia, federal bribery, in violation of 18 U.S.C. § 666(a)(1)(B). The former
mayor argued that the statute applies only to bribes and not gratuities, which are rewards
for actions the payee has already taken or is already committed to take. The court
examined the statute’s text, which does not mention gratuities, and found that the
language on “influenced or rewarded” encompassed both briberies and gratuities. The

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court was not persuaded by the holdings of other circuits that had found § 666 did not
apply to gratuities (United States v. Snyder).
• *Criminal Law & Procedure: In a divided opinion, the Ninth Circuit held that in certain
criminal sentencing scenarios, the government must prove underlying facts by clear and
convincing evidence. In so holding, the court abided by circuit precedent and maintained
its lone position in a circuit split regarding the government’s burden of proof in
establishing a fact for a sentencing enhancement under the United States Sentencing
Guidelines (USSG). Ninth Circuit precedent predates the Supreme Court’s decision in
United States v. Booker, in which the Supreme Court held that the USSG are advisory,
not mandatory. Here, the court held that it was bound by its precedent, although it
acknowledged that the Ninth Circuit is the only circuit, post-Booker, to require a
heightened showing for certain sentencing enhancements scenarios (United States v.
Lucas).
• Education: The Third Circuit reversed a decision that a student’s adult cousin, with
whom the student resides, does not qualify as the student’s parent for purposes of the
Individuals with Disabilities Education Act (IDEA). The court examined the IDEA’s four
disjunctive definitions of “parent” and determined that the cousin satisfied the third
definition, an individual acting in the place of a natural parent with whom the child lives.
The court declined to consider Department of Education regulations defining “parent”
and held that the IDEA’s text indicates “an unambiguous congressional intent to qualify
multiple persons as parents” under the statute (Q.T. v. Pottsgrove Sch. Dist.).
• Environment: The D.C. Circuit held that the National Marine Fisheries Service may not
give the “benefit of the doubt” to an endangered species by relying upon worst-case
scenarios or pessimistic assumptions when preparing a biological opinion required by 16
U.S.C. § 1536(b)(3)(A) of the Endangered Species Act (ESA). The court held that the
ESA and its accompanying regulations require the Service to determine whether licensing
a federal fishery is “likely” to jeopardize a protected species, and therefore directed the
district court to vacate the Service’s opinion that certain lobster and crab fisheries
licensed by the Service kill an unsustainable number of North American right whales
(Maine Lobstermen's Ass’n. v. Nat’l Marine Fisheries Serv.).
• First Amendment: A divided Fifth Circuit held that an injured police officer’s
negligence claim, alleging a Black Lives Matter protest organizer knew or should have
known violence would likely ensue, does not violate the First Amendment. The Fifth
Circuit ultimately renewed its prior holding allowing the officer’s negligence claim to go
forward (Doe v. Mckesson).
• Labor & Employment: The D.C. Circuit reversed its precedent and held that 5 U.S.C.
§ 7703(b)(2), which provides for a 30-day filing deadline to seek judicial review of
certain decisions of the Merit Systems Protection Board, is a nonjurisdictional rule. The
court, citing the case law in several other circuit courts and the Supreme Court’s decision
in Irwin v. Dep’t of Veterans Affs. regarding the filing deadline of a cause of action listed
in § 7703(b)(2), held that the statute of limitations lacks a “clear statement” that Congress
intended to limit the district court’s jurisdiction through the 30-day deadline (Robinson v.
DHS Off. of Inspector Gen.).
• Military Law: The Fifth Circuit vacated and remanded the district court’s denial of
Governor Abbott’s motion to enjoin a Department of Defense (DOD) policy permitting
the punishment of members of the Texas National Guard for noncompliance with the
DOD military vaccine order prior to its repeal. The court held that the President of the
United States lacks authority to punish members of state militias who have not been

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called into federal service, rejecting the government’s argument that certain provisions in
Title 32 permit DOD to ensure that state National Guards enforce its policies. The court
disagreed that these statutes are permissible exercises of Congress’s power to provide for
the discipline of the militia under the Organizing Clause, stating those statutes are instead
exercises of Congress’s power to govern the militia while it is in federal service under the
Calling Forth Clause. Accordingly, the court held that under the Militia Clauses of the
Constitution, until a state National Guard is federalized, the states retain exclusive
authority to punish or otherwise govern them (Abbott v. Biden).
• Property: The Federal Circuit affirmed in part the Court of Federal Claims’ judgment
that Army Corps of Engineers’ (Corps) policies to restore the Missouri River, resulting in
frequent and severe flooding to neighboring farms, amounted to permanent, physical
takings under the Fifth Amendment. After the trial court determined that intermittent
flooding between 2007 and 2014 was a taking and awarded damages, both parties
appealed, with the plaintiffs challenging the court’s denial of crop damages and its
finding that the Corps did not causally contribute to a 2011 flooding. The Federal Circuit
agreed with the plaintiffs and remanded proceedings, affirming in part and vacating in
part the trial court decision (Ideker Farms, Inc. v. United States).
• Torts: The Fifth Circuit held that the federal Longshore and Harbor Workers
Compensation Act (LHWCA), 33 U.S.C. § 905, did not preempt Louisiana state tort law
claims by maritime workers who declined to pursue LHWCA remedies. The court
acknowledged that although the language of the LHWCA suggested it was the exclusive
remedy available to injured maritime workers, Supreme Court precedent established a
zone of concurrent jurisdiction for certain maritime claims and foreclosed express
preemption of state law. The court also declined to find conflict preemption, or
preemption that occurs when complying with both federal law and state law is impossible
or state law creates an unacceptable obstacle to Congress’s objectives. The court noted
that some incongruity is inherent in any system of concurrent jurisdiction, and “ordinary
incongruities or minor annoyances” do not give rise to such preemption (Barrosse v.
Huntington Ingalls, Inc.).
• Veterans: Sitting en banc, the Federal Circuit held that 38 U.S.C. § 5110, which provides
the effective date for Veterans Affairs (VA) benefits, was unconstitutional as applied to a
veteran (the claimant) who could not seek benefits for decades because he was sworn to
secrecy under penalty of court-martial with regard to the service-related activities that
caused his injuries. The claimant suffered injuries from participating in a secret Army
program from 1969 to 1971 under which he was experimentally subjected to chemical
warfare substances. He could not apply for benefits until 2006, when the government
released him from an oath of secrecy he had signed with respect to the program. The VA
awarded the claimant benefits, but only as of the date it received the claim, per § 5510’s
“default rule,” which was in 2006. The Federal Circuit ultimately awarded the claimant
benefits on due process grounds, starting at the time he would have filed for benefits
absent the secrecy oath. The court reasoned that the government, via the oath to secrecy,
violated the claimant’s fundamental right of access to the exclusive adjudicatory forum
for vindicating his right to disability benefits (Taylor v. McDonough).

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Author Information

Jimmy Balser
Michael John Garcia
Legislative Attorney
Deputy Assistant Director/ALD

Michael D. Contino
Matthew D. Trout
Legislative Attorney
Legislative Attorney

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