Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (August 28, 2023–September 4, 2023)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (August 28, 2023–September 4, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(August 28, 2023–September 4, 2023)
September 5, 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
The Supreme Court did not issue any opinions or grant certiorari in any cases 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.
• *Criminal Law & Procedure: The First Circuit held that a sentencing enhancement for
the use or attempted use of a minor in the commission of a crime is valid as applied to
defendants aged 18 to 21, joining most circuits that have considered the issue. In the
Violent Crime Control and Law Enforcement Act of 1994, Congress directed the United
States Sentencing Commission to create a minor-use enhancement in the United States
Sentencing Guidelines for defendants “21 years of age or older.” The Commission’s
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broader proposed enhancement—which did not contain the 21-years-of-age threshold—
took effect after Congress did not revise or disapprove the proposal during the applicable
review period. The First Circuit held that the Commission acted under its general
statutory powers in proposing the enhancement and that the enhancement does not
conflict with the congressional directive, explaining that the enhancement still applies to
defendants aged 21-and-over and that the Commission has the discretion to implement
the directive in a broader manner (United States v. Vaquerano Canas).
• *Criminal Law & Procedure: Widening a circuit split, the Sixth Circuit held that the
definition of “controlled substance offense” for purposes of applying a sentencing
enhancement to a defendant who commits a firearms offense after a felony conviction for
a “controlled substance offense” includes a prior conviction for a state-law controlled
substance offense. The Second, Fifth, and Ninth Circuits have limited the definition of
“controlled substance offense” by looking only to substances criminalized by the federal
Controlled Substances Act. Relying mainly on a textual analysis, however, the Sixth
Circuit agreed with the Third, Fourth, Seventh, Eighth, and Tenth Circuits that the
enhancement incorporates both state and federal controlled substance offenses (United
States v. Jones).
• Criminal Law & Procedure: The Eleventh Circuit held that a district court did not
abuse its discretion by denying the defendant’s motion to dismiss an indictment due to the
government’s admitted violation of 18 U.S.C. § 4241(d), which provides that a defendant
who is mentally incompetent to stand trial may be committed to the custody of the
Attorney General and hospitalized for “a reasonable period of time, not to exceed four
months.” The government hospitalized the defendant here beyond this statutory period.
The court was not persuaded, however, that dismissal is the proper remedy for a violation
of the statute (United States v. Curtin).
• Education: The D.C. Circuit rejected a challenge from a guaranty agency (GA) under the
Federal Family Education Loan Program to a Department of Education rule that prohibits
GAs from assessing debt-collection costs against defaulted borrowers who attempt to end
their default status within 60 days of receiving certain notice from the GA. The court
concluded that the rule aligns with the text, structure, and purpose of the Higher
Education Act of 1965, and that the Department acted within its congressionally
delegated authority by promulgating it (Ascendium Educ. Solutions, Inc. v. Cardona).
• Environmental Law: The Ninth Circuit affirmed a district court’s dismissal of an action
against the United States Forest Service (USFS) in a suit alleging the agency was civilly
liable under the Resource Conservation and Recovery Act (RCRA) for failing to restrict
hunters’ use of lead ammunition in the Kaibab National Forest. Plaintiffs claimed the
USFS was liable for contributing to the disposal of solid or hazardous waste that may
pose an imminent and substantial danger to the environment. The court decided that
Congress had not required USFS to regulate lead ammunition on federal lands. The court
further held that the USFS’s challenged conduct—namely, its failure to regulate lead shot
directly or through its special permitting of commercial hunting on federal lands—was
not the kind of active control and involvement in the disposal of hazardous waste giving
rise to contributor liability under RCRA (Ctr. for Biological Diversity v. USFS).
• Health: The D.C. Circuit sided with the government in a dispute over hospitals’
reimbursement for the treatment of a subset of the Medicare beneficiary population
entitled to supplemental security income benefits (SSI) under the Social Security Act
(SSA). The court agreed that this population includes only those receiving monthly SSI
payments at the time of hospitalization. The court rejected arguments that the population

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also includes patients who do not receive such payments, but receive a subsidy under
Medicare Part D or vocational rehabilitation services under different SSA titles (Advoc.
Christ Med. Ctr. v. Becerra).
• Health: The D.C. Circuit vacated part of a Food and Drug Administration (FDA) order
that denied applications to market certain unflavored vaping products. The court held that
FDA failed to undertake a holistic analysis of whether the benefits and risks of individual
products have been shown to be appropriate for protecting public health as required by
the Tobacco Control Act. However, the court upheld FDA’s order as to the flavored
vaping products at issue, holding that the agency reasonably found a lack of evidence that
approval of these products would be appropriate for protecting public health (Fontem US,
LLC v. FDA).
• Health: The Eighth Circuit affirmed the dismissal of a long-term care facility’s breach of
contract, tort, and fraud claims against a private health plan and its sponsor, which had
enrolled a patient covered by the plan in Medicaid while she was receiving treatment at
the facility. After Medicaid retroactively covered the patient’s care and the facility
accepted payment from Medicaid for her treatment, the facility sought payment from the
plan and sponsor, which misrepresented the patient’s coverage status when applying for
Medicaid on her behalf. Among other things, the Eight Circuit held that under 42 C.F.R.
§ 447.15, a health care provider who accepts payment from Medicaid has received
“payment in full” under the regulation, and cannot pursue contractual claims against
other entities for the same treatment (Select Specialty Hosp.-Sioux Falls, Inc. v.
Brentwood Hutterian, Brethren, Inc.).
• Health: The Eighth Circuit affirmed an order remanding to state court a tort suit filed on
behalf of a former nursing home resident who allegedly contracted COVID-19 at a
nursing home operated by defendants. The court rejected defendants’ argument that the
Public Readiness and Emergency Preparedness Act (PREP Act), 42 U.S.C. §§ 247d-6d,
247d-6e, provides a basis for federal jurisdiction, holding instead that the PREP Act does
not completely preempt state causes of action for negligence. The court noted that this
holding accords with opinions from six other circuits, and agreed with every circuit that
has considered the issue that a contrary January 2021 advisory opinion issued by the
General Counsel of the Department of Health and Human Services is not entitled to
deference (Cagle v. NHC Healthcare).
• Immigration: The Ninth Circuit vacated and agreed to rehear en banc a panel decision
that held that 8 U.S.C. § 1182(a)(9)(C)(i)(II), which renders permanently inadmissible an
alien who illegally reenters the United States after being removed, applies retroactively to
those who unlawfully reentered before April 1, 1997, provided they failed to apply for
adjustment to legal status before that date (United States v. Vega).
• Immigration: The Ninth Circuit recognized that the Supreme Court’s 2021 decision in
United States v. Palomar-Santiago abrogated earlier circuit precedent and foreclosed a
criminal defendant, convicted of illegally reentering the United States after being
removed, from making a collateral attack against the predicate removal order. The
defendant sought to challenge the order claiming that the presiding immigration judge
misinformed him of his eligibility to voluntarily depart the United States in lieu of
removal. While recognizing that earlier circuit caselaw might have permitted this
challenge, the panel held it to be barred by the Supreme Court’s decision in Palomar-
Santiago, which recognized that such attacks are barred unless each requisite listed under
8 U.S.C. § 1326(d) is satisfied, including that the defendant exhausted all administrative
remedies. Because the defendant had not challenged the validity of the removal order in

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the underlying proceedings, the panel held he could not raise a collateral attack here
(United States v. Portillo-Gonzales).
• Intellectual Property: The D.C. Circuit held that the Copyright Office violated the
Takings Clause when it demanded that a print-on-demand publisher deposit copies of its
books with the Library of Congress or pay a fine. Under Section 407 of the Copyright
Act, 17 U.S.C. § 407, a copyright owner “shall” deposit two copies of a published
copyrighted work with the Copyright Office for the use of the Library of Congress.
(Deposit is separately required under 17 U.S.C. § 408 as part of the optional copyright
registration process, a requirement not challenged in the litigation.) At one time, deposit
was needed to obtain and maintain copyright protection, making the requirement a
voluntary exchange of property for a governmental benefit. The Copyright Act of 1976
and subsequent amendments, however, made copyright protection automatic once an
author fixes a work in a tangible medium. According to the court, this change rendered
the deposit unnecessary to obtain rights and, consequently, an uncompensated taking of
private property (Valancourt Books, LLC v. Garland).
• Intellectual Property: The obviousness-type double patenting (ODP) doctrine prohibits
an inventor from obtaining a second patent for claims that are not patentably distinct from
those in an earlier patent. However, patentees may file a “terminal disclaimer” to avoid
an ODP rejection by ensuring that their related patents will expire at the same time. Two
statutory provisions, meanwhile, can lengthen a patent’s term: patent term adjustments
under 35 U.S.C. § 154 are based on certain delays in patent examination, and patent term
extensions under 35 U.S.C. § 156 are based on delays in the regulatory review required to
market certain products, such as pharmaceutical drugs. The Federal Circuit had
previously held that the ODP analysis uses a patent’s expiration date before an extension
has been added under § 156. Here, based on differences in the statutory text and
framework for adjustments under § 154, the Federal Circuit held that the ODP analysis
uses a patent’s expiration date after an adjustment is added (In re Cellect, LLC).
• Public Health: The Fifth Circuit permitted a suit to proceed against the FDA, the
Department of Health and Human Services (HHS), and named officials for statements
made on the use of ivermectin to treat COVID-19 symptoms. Ivermectin, which may be
formulated for human or animal use, has not been approved by the FDA for COVID-19
treatment. The plaintiffs, three doctors who prescribed the human version of the drug to
treat COVID-19 symptoms, alleged that statements made by the defendants following
reports of people self-medicating with the animal version of invermectin harmed their
medical practices and reputations. The district court dismissed the suit on sovereign
immunity grounds, but the Fifth Circuit reversed. The court of appeals held that the
plaintiffs plausibly alleged that the defendants’ statements were not purely informational
but instead medical recommendations that they lacked statutory authority to make, and
that the plaintiffs could use the Administrative Procedure Act to bypass sovereign
immunity and pursue these ultra vires claims (Apter v. HHS).
• Securities: The D.C. Circuit held that the Securities and Exchange Commission (SEC)
acted arbitrarily and capriciously when it denied a rule change seeking to list a proposed
bitcoin exchange-traded product on a national exchange. The SEC previously approved
two rule changes to list bitcoin futures exchange-traded products, and in the court’s view,
the proposed bitcoin product is materially similar, across the relevant regulatory factors,
to the approved bitcoin futures products (Grayscale Investments, LLC v. SEC).
• Tax: The Second Circuit held that violation of a Treasury regulation corresponding to
Internal Revenue Code (IRC) Section 6331 did not bar the Department of Justice’s suit to

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collect an unpaid tax liability. In violation of Treasury Regulation Section 301.6331-
4(b)(2), the Internal Revenue Service (IRS) referred the defendant’s matter to the
Department of Justice before the defendants received the IRS’s formal rejection of an
installment agreement request. After the defendants received and declined to appeal the
rejection, the Department of Justice filed suit in compliance with IRC Section 6331. The
Second Circuit held that, although the regulation bars the IRS from issuing a referral
while an installment agreement request is pending, the statute is silent on referrals and
only bars the government from commencing a “proceeding in court” during that period.
The court further held that, absent a violation of constitutional or statutory rights or any
demonstration of prejudice, the government’s failure to follow its own regulations did not
bar the collection action (United States v. Schiller).

Author Information

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

Peter J. Benson

Legislative Attorney

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