Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (August 21, 2023–August 27, 2023)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (August 21, 2023–August 27, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(August 21, 2023–August 27, 2023)
August 28, 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
No Supreme Court opinions or grants of certiorari were issued last week. The Supreme Court’s next term
is scheduled 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 Liability: The Second Circuit, disagreeing with the approaches of several other
circuits, held that the civil-action provision of the Racketeer Influenced and Corrupt
Organizations Act (RICO) does not bar a suit for damages simply because those damages
flow from a personal injury. The plaintiff consumed a hemp-derived product that was
marketed as free from tetrahydrocannabinol (THC), then lost his job following a positive
drug test for THC. The plaintiff sued the product’s marketers under RICO for damages,
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including lost wages. The district court had granted summary judgment for the
defendants on the grounds that RICO only permits recovery for injury “to business or
property.” The Second Circuit reversed, holding that lost earnings resulting from a
personal injury are potentially recoverable (Horn v. Medical Marijuana, Inc.).
• Criminal Law & Procedure: The Second Circuit affirmed a conviction under the federal
kidnapping statute, 18 U.S.C. § 1201. The defendant, who was also convicted of
extortion, argued that he did not “hold[] for ransom or reward or otherwise any person”
as prohibited by the statute because, first, the duration of his detention of the victim was
too short to constitute kidnapping and, second, because the detention was merely
incidental to the extortion. The court rejected both arguments, holding that, when a
defendant is charged with kidnapping along with another defense, he or she “holds” a
person in violation of the kidnapping statute if the time the defendant held the victim is
appreciably longer than the time required to commit the other charged offense (United
States v. Krivoi).
• Criminal Law & Procedure: The Third Circuit ordered the acquittal of a criminal
defendant convicted of assaulting two private security contractors at a federal building.
The defendant was convicted under 18 U.S.C. § 111, which (by cross-reference to 18
U.S.C. § 1114) applies when the victim is an “officer or employee” of the United States”
or is assisting an officer or employee in the performance of his or her duties. The court
concluded that § 111 did not apply because the plain meaning of “officer” did not cover
private contractors; the victims had not been designated as officers by the United States;
and the government had not proffered sufficient evidence at trial that the contractors were
assisting a specific officer or employer in the performance of official duties, rather than
merely the federal agency occupying the building, when the contractors were assaulted
(United States v. Washington).
• Energy: The Fifth Circuit vacated a license issued by the Nuclear Regulatory
Commission (NRC) to a private entity to operate a temporary, away-from-reactor storage
facility for spent nuclear fuel. Noting its disagreement with the D.C. Circuit, the panel
held that the Atomic Energy Act did not confer authority upon the NRC to license private,
away-from-reactor storage facilities. The panel also held that the license contravened the
policy expressed in the Nuclear Waste Policy Act. The panel read that statute as limiting
the location of the temporary storage of spent nuclear fuel to federal facilities and private,
at-the-reactor storage facilities, pending the completion of a permanent storage facility at
Yucca Mountain (Texas v. NRC).
• Energy: The Tenth Circuit affirmed a lower court’s decision upholding regulations issued
by the Department of the Interior (DOI) in 2016 that govern the calculation of royalties
for oil and natural gas produced on federal lands. The panel agreed that DOI had not
acted arbitrarily and capriciously under the Administrative Procedure Act, deciding that it
had examined relevant data and adequately explained the basis for its disputed valuation
methods (Am. Petroleum Inst. v. DOI).
• Intellectual Property: Vacating a district court’s grant of summary judgment, the
Eleventh Circuit held that a nonexclusive trademark licensee may bring a claim for unfair
competition under the Lanham Act when the licensing agreement is silent on the right to
sue. The court distinguished circuit precedent from 2019, which held that a trademark
licensee could not sue under the Lanham Act when the licensor explicitly reserved
enforcement rights in the licensing agreement (D.H. Pace Company, Inc. v. OGD
Equipment Co., LLC).

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• International Law: A divided Fourth Circuit held that the balance of equities supported
a preliminary injunction blocking a Lithuanian citizen’s extradition under the U.S.-
Lithuania extradition treaty. The majority concluded that the treaty’s unambiguous
requirement that Lithuania support an extradition request with an indictment or
comparable legal instrument initiating criminal charges was not satisfied by documents
that reflected the petitioner was under criminal investigation, but which did not initiate
criminal proceedings (Vitkus v. Blinken).
• International Law: Reversing a lower court, the Second Circuit held that a Lebanese
bank sued for aiding a militant group was entitled to immunity under the Foreign
Sovereign Immunities Act (FSIA) after Lebanon’s central bank acquired the bank’s
assets. The court held that immunity under the FSIA may attach to a defendant that was
not an instrumentality of a foreign sovereign when a suit was filed, but that becomes an
instrumentality during the litigation (Bartlett v. Baasiri).
• Procurement: The Federal Circuit reversed an Armed Services Board of Contract
Appeals decision dismissing a military contractor’s claim under the Contract Disputes
Act (CDA) for lack of jurisdiction. The court decided the contractor failed to meet a
requirement to state a precise dollar amount sought as relief, or “sum certain,” for each
distinct claim. The court held that a clear statement from Congress is needed to show that
a procedural requirement like the sum-certain requirement is meant to be jurisdictional.
The court further held that the sum-certain requirement lacks the required clear statement
because it arises from regulation rather than statute. The court concluded, therefore, that
the sum-certain requirement is not jurisdictional and can be waived (ECC Int'l
Constructors, LLC v. Sec'y of Army).
• Separation of Powers: A divided panel of the Sixth Circuit held that Congress’s
delegation of authority to the Occupational Safety and Health Administration (OSHA) to
set workplace safety standards is constitutional and does not violate the nondelegation
doctrine. The court reasoned that the Occupational Safety and Health Act, which directs
OSHA to set “reasonably necessary or appropriate” workplace safety standards, 29
U.S.C. § 652, provides an intelligible principle to which OSHA must conform. The court
joined the Seventh Circuit and the D.C. Circuit in rejecting a challenge to OSHA on
nondelegation grounds (Allstates Refractory Contractors v. Su).
• Separation of Powers: The Ninth Circuit held that the appointment and removal of
immigration judges and members of the Board of Immigration Appeals by the Attorney
General satisfied Article II of the Constitution. The court held that such persons were
“inferior officers,” and that Congress could therefore permissibly vest the power to
appoint them to the Attorney General under the Appointments Clause. The court also
ruled that the removal process for these officers complied with Article II, as they could be
freely dismissed by the Attorney General, who remained accountable to the President
(Duenas v. Garland).
• Torts: The Second Circuit held that the Hazardous Materials Transportation Act of 1975
(HMTA) expressly preempted a plaintiff’s products liability and failure to warn claims.
The plaintiff sued a company that produced an air tank used by the plaintiff’s employer
that exploded and injured him. The HMTA expressly preempts state laws that are (1)
“about” certain subjects related to the transportation of hazardous materials in commerce,
including the “marking” of a “container . . . that is represented, marked, certified, or sold
as qualified for use in transporting hazardous material in commerce” and (2) “not
substantively the same as a provision” of the HMTA or implementing regulations. The
panel held both preemption requirements were satisfied here, as the plaintiff’s claims

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were encompassed by the HMTA’s provisions “about” the “marking” of the “container,”
and the plaintiff’s tort law claims swept more broadly than federal law by requiring a less
culpable mental state for liability (Buono v. Tyco Fire Products, LP).

Author Information

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

Jason O. Heflin

Legislative Attorney

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