Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (July 3, 2023–July 9, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(July 3, 2023–July 9, 2023)
July 10, 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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Decisions of the Supreme Court
No Supreme Court opinions or grants of certiorari were issued last week. The Supreme Court’s next term
is to begin October 2, 2023.
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.
• *Civil Rights: In a case challenging a waterpark’s refusal to allow a person with one
natural hand to use a water ride, the Eleventh Circuit held that the park had not shown it
complied with the Americans with Disabilities Act (ADA). The ADA generally bars a
public accommodation from excluding someone with a disability except when
“necessary.” The water park argued its eligibility requirements were “necessary” because
they were compelled by state law. Acknowledging disagreement with the Sixth Circuit,
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the court held that compliance with state law is not “necessary” under the ADA, which
preempts conflicting state requirements. The court remanded for further proceedings on
whether the refusal was “necessary” because of actual safety concerns (Campbell v.
Universal City Devel. Partners, Ltd.).
• Communications: The D.C. Circuit turned away constitutional challenges to the Allow
States and Victims to Fight Online Sex Trafficking Act of 2017 (FOSTA), which
broadens criminal and civil liability for conduct related to online sex trafficking. The
plaintiffs argued the new criminal prohibitions created by FOSTA were facially
overbroad under the First Amendment and swept in protected speech, like general
advocacy of prostitution or giving safety advice to sex workers. The court instead held
these provisions are co-extensive with traditional aiding and abetting prohibitions,
covering speech integral to criminal conduct unprotected under the First Amendment.
The court also rejected arguments that these and other FOSTA provisions were
unconstitutionally vague, or that provisions altering online platforms’ immunity from
liability for user-posted content under the Communications Decency Act violated the Ex
Post Facto Clause or the First Amendment (Woodhull Freedom Found. v. United States).
• Criminal Law & Procedure: The Second Circuit held that the timeliness of a state
prisoner’s habeas petition under 28 U.S.C. § 2244(d)(1) is assessed on a claim-by-claim
basis, joining every other federal circuit court that has considered the question. The
Second Circuit rejected the prisoner’s argument that, because the statute establishes a
time limit for an “application,” he could raise otherwise time-barred claims in a petition
that also asserted timely claims (Clemente v. Lee).
• Criminal Law & Procedure: The Seventh Circuit held that a defendant’s conviction for
attempted murder of a federal officer under 18 U.S.C. § 1114 is a valid predicate crime of
violence under the Armed Career Criminal Act (ACCA). Following the Supreme Court’s
guidance in United States v. Taylor on applying the categorical approach to attempt
offenses, the Seventh Circuit reasoned that completed murder is a crime of violence
because the use of physical force is always an element the government must prove to
obtain a conviction for completed murder. The court concluded that, because an attempt
is treated as an attempt to carry out each element of the completed offense, attempted
murder is also a crime of violence for purposes of the ACCA (United States v. States).
• Criminal Law & Procedure: The Seventh Circuit joined every other federal circuit
court in holding that a sex offender is “indigent” under 18 U.S.C. § 3014, and not liable
for a $5,000 special assessment, if he was eligible for appointed counsel at sentencing
and he does not have the financial prospects for repaying the special assessment.
Although § 3014 does not mention earning capacity, the court held that the ordinary
definition of indigency and § 3014’s allowance of a twenty-year payment period for the
special assessment indicate that courts should consider a defendant’s future earning
capacity (United States v. Otradovec).
• *Criminal Law & Procedure: The Eighth Circuit held that arson, 18 U.S.C. § 844(f)(1),
is not subject to a sentencing enhancement as a “crime of violence” under 18 U.S.C.
§ 924(c)(3) because it does not contain, as an element, the use of physical force against
the property of another. Section 844(f)(1) defines arson as “maliciously damag[ing] or
destroy[ing]” a vehicle owned or possessed by an entity receiving federal funding, and
the court interpreted “maliciously” as a willful disregard of the likelihood that property
will be damaged or destroyed. The court considered the Supreme Court’s holding in
Borden v. United States, which ruled that any crime that can be committed recklessly
does not have, as an element, the use of physical force. The court acknowledged that

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circuit courts have disagreed about how to apply Borden to criminal statutes that use
mental states, like malice, and concluded that Borden required a crime of violence to
contain an element of “targeting” conduct at someone or something, which the mental
state of malice lacks (United States v. Lung’aho).
• *Criminal Law & Procedure: The Ninth Circuit held that district courts may consider
non-retroactive changes in post-sentencing decisional law, or law made by judges, when
considering whether a defendant has shown extraordinary and compelling reasons for a
sentencing reduction under 18 U.S.C. § 3582. The court found support in its prior
decision United States v. Chen, where it held that district courts may consider non-
retroactive changes made by statutory sentencing law. Here, the court held that the logic
underpinning Chen also applied to cases where the relevant change in sentencing law is
decisional. While some circuits have “kept the door open” to motions for sentence
reductions based on decisional law, the Ninth Circuit’s affirmative holding is in conflict
with several circuits that rejected such motions (United States v. Roper).
• Environmental Law: The D.C. Circuit vacated a Department of Energy (DOE) final rule
setting boiler efficiency standards higher than recognized industry standards. This was
the second time the rule was before the court, following remand back to the agency for
further deliberations after determining evidentiary requirements for setting the standard
were not met. Here, the court held that DOE should have provided an opportunity for
notice-and-comment before filing its supplement to the rule because it relied on new
literature and evidence to support its reasoning, and DOE again failed to provide a
sufficient explanation in response to challenges to key assumptions it made (Am. Pub.
Gas Ass’n v. DOE).
• Food & Drug: Joining other circuits, the Ninth Circuit denied two e-cigarette liquid
manufacturers’ petitions for review of the Food and Drug Administration’s (FDA’s)
marketing denial orders. The court held that 21 U.S.C. § 387j authorizes FDA to compare
claimed cessation benefits between flavored and nonflavored tobacco products. The court
concluded that FDA did not act arbitrarily or capriciously in denying petitioners’
applications, and that any error made in overlooking petitioners’ marketing plans was
harmless (Lotus Vaping Tech., LLL v. U.S. FDA).
• Government Processes: The D.C. Circuit held that the U.S. International Development
Finance Corporation (DFC) was not subject to the Sunshine Act, even though the Act had
applied to a DFC predecessor, the Overseas Private Investment Corporation (OPIC). The
Act requires covered agencies to generally make their meetings open to the public, and it
defines a covered “agency” as including one “headed by a collegial body . . . , a majority
of whom are appointed to such position by the President with the advice and consent of
the Senate.” The court observed that unlike OPIC, the majority of the DFC board were
not directly appointed as board members by the President, but served ex officio while
occupying a separate office (Ctr. for Biological Diversity v. U.S. DFC).
• *Health: The Sixth Circuit granted an emergency stay of a lower court’s preliminary
injunction against a Tennessee law restricting gender-affirming surgeries, hormone
therapy, and puberty blockers for transgender minors. The circuit panel ruled that
Tennessee was likely to prevail in its appeal of the injunction, and the panel expedited
review of that appeal. At this stage, the panel held that the state-wide injunction was
likely overbroad and unnecessary to remedy the plaintiffs’ alleged injuries. On the merits,
the panel held that the plaintiffs were unlikely to succeed in their arguments that the law
violated parents’ constitutional due process right to control their children’s medical care.
The court also held that plaintiffs were unlikely to show that the law violated

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constitutional equal protection principles, and the panel expressed disagreement with
other circuits that have applied heightened constitutional scrutiny to transgender-based
classifications (L.W. v. Skrmetti).
• *Immigration: The Third Circuit held that an alien may not be removed in absentia if the
original notice to appear (NTA) for removal proceedings lacked the date and time of the
proceedings as required under 8 U.S.C. § 1229(a)(1), even if a supplemental notice issued
pursuant to §1229(a)(2) later supplied the missing information. The circuit panel cited the
Supreme Court’s decision in Pereira v. Sessions, which held that the issuance of an NTA
that lacked the date and time of an alien’s removal proceedings was not an NTA under §
1229(a)(1), and therefore did not cut off the required period of continuous presence for
cancellation of removal. The Third Circuit determined that, as in Pereira, the
government’s two-step process of supplying only some information in an NTA and
providing a supplemental notice with the date and time later did not comport with the
requirements of either § 1229(a)(1) or § 1229(a)(2). The decision widens a circuit split on
whether § 1229(a)(2) provides a basis for this two-step process, with the Third Circuit
joining the First, Fifth, and Ninth Circuits, and disagreeing with the Sixth and Eleventh
Circuits (Madrid-Mancia v. Att’y Gen.).
• International Law: The Third Circuit affirmed a lower court judgment that Venezuela’s
national oil company operated as the “alter ego” of Venezuela’s government, potentially
enabling arbitration award creditors of the Venezuelan government to attach property held
by the bank (OI Eur. Grp. B.V. v. Bolivian Repub. Of Venezuela Petrolqs de Venezuela,
S.A.).
• International Law: A divided Ninth Circuit held that plaintiffs could proceed with
certain claims brought under the Alien Tort Statute (ATS) and the Torture Victim
Protection Act of 1991 (TVPA) against U.S. corporation Cisco and two company
executives. The plaintiffs alleged that the defendants aided and abetted or conspired with
Chinese authorities to surveil Falun Gong practitioners, resulting in the practitioners’
arrest and torture. The majority held that aiding and abetting liability may fall under the
ATS if the claim involves assistance to the principal, but such assistance must be
knowingly provided. While caselaw recognizes that the ATS does not apply
extraterritorially, the majority found it applicable to Cisco (but not the company
executives) because much of Cisco’s alleged aiding and abetting conduct occurred in the
United States. The panel also held that the TVPA encompasses claims against persons
who aid and abet torture or extrajudicial killings, even if those persons did not participate
in those acts directly, and found that the TVPA claims against the Cisco executives had
been adequately pleaded and could proceed (Doe I v. Cisco Systems, Inc.).
• Labor & Employment: The D.C. Circuit upheld the Secretary of Labor’s interpretation
of regulations under the Federal Mine Safety and Health Act of 1977 on when an
operator’s history of safety and health violations is considered in the penalty assessment
for a new violation. The Secretary construed the governing regulation, which considers
violations in the “preceding 15-month period,” to cover all citations or orders that were
finalized in that period, even if they were issued earlier. The court ruled that the
governing regulation was ambiguous and deferred to the Secretary’s reasonable
interpretation (GMS Mine Repair v. Fed. Mine Safety & Health Rev. Comm’n).

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• Labor & Employment: The Seventh Circuit held that an injured railroad employee
cannot establish negligence per se in a Federal Employers’ Liability Act (FELA) action
based on an alleged violation of Federal Railroad Administration (FRA) Track Safety
Standards without showing that the track owner had actual or constructive notice of the
alleged violation. The plaintiff conceded that notice is required for the FRA to impose
civil penalties for Track Safety Standard violations, but argued that violations resulting in
injury are actionable under FELA even without notice. The Seventh Circuit disagreed, but
reversed the district court’s order granting summary judgment to the defendant after
separately concluding that a genuine factual dispute existed as to whether the defendant
had notice of the alleged violation (Jaranowski v. Ind. Harbor Belt R.R. Co.).

Author Information

Michael John Garcia
Alexander H. Pepper
Deputy Assistant Director/ALD
Legislative Attorney


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





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