Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (October 16, 2023–October 22, 2023)

Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (October 16, 2023–October 22, 2023)

Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(October 16, 2023–October 22, 2023)
October 23, 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 took action on two emergency applications, and granted certiorari to
review one of those cases:
• Firearms: The Supreme Court granted the federal government’s application to vacate a
district court’s injunction blocking enforcement of a Bureau of Alcohol, Tobacco,
Firearms and Explosives (ATF) rule addressing “ghost guns,” so-called because they lack
serial numbers useful for tracing purposes. According to the federal government, the ATF
rule requires certain manufacturers and sellers of specific products that can readily be
converted into functional firearms or their key components to, among other things, mark
their products with serial numbers. As discussed in a prior Congressional Court Watcher,
the Court previously stayed the same district court’s vacatur of the ATF rule on an
emergency basis, allowing the rule to go into effect while litigation challenging it
proceeds (Garland v. Blackhawk Mfg. Grp., Inc.).
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• Speech: The Supreme Court granted the Biden Administration’s request to temporarily
block a district court’s order that, as modified by the Fifth Circuit, limited officials in the
White House, the Surgeon General's Office, the Centers for Disease Control and
Prevention, and the Federal Bureau of Investigation from communicating with social
media platforms regarding their content-moderation decisions. Three justices would have
denied the stay request. The Court also granted certiorari on the questions presented in
the application for stay (Murthy v. Missouri).
Decisions of the U.S. Courts of Appeal
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: Deepening a circuit split, a divided Second Circuit held that establishing a
“factor other than sex” defense to a disparate pay claim under the Equal Pay Act requires
proving only that the pay disparity resulted from a differential based on any factor other
than sex. The controlling opinion rejected the argument that a defendant must also prove
that the differential is job related. (Eisenhauer v. Culinary Institute of America).
• Criminal Law & Procedure: The Ninth Circuit held that “voluntary manslaughter”
under 18 U.S.C. § 1112(a)—defined as “the unlawful killing of a human being without
malice” that occurs “[u]pon a sudden quarrel or heat of passion”—qualifies as a “crime of
violence” for purposes of 18 U.S.C. § 924(c), which enhances the sentence of a person
who uses or possesses a firearm during a crime of violence. The court, applying the
categorical approach, reasoned that voluntary manslaughter, though lacking the element
of malice, otherwise required the same mental state as murder to qualify as a crime of
violence (United States v. Draper).
• Energy: A divided Ninth Circuit held that Section 4(h)(11)(A) of the Northwest Power
Act does not require the Bonneville Power Administration, a federal agency tasked with
selling power in the Pacific Northwest, to take into account measures to protect fish and
wildlife when establishing rates for the electricity it sells (the dissenting panelist
concluded that the panel lacked subject matter jurisdiction over the petition because the
petitioners did not demonstrate that they had Article III standing) (Idaho Conservation
League v. Bonneville Power Administration).
•
• Food & Drug: A divided Third Circuit denied an e-cigarette manufacturer’s petition to
review a Food and Drug Administration (FDA) order prohibiting the petitioner from
marketing its menthol-flavored e-cigarettes. The court concluded that FDA did not
change its relevant evidentiary standard while evaluating the petitioner’s application,
adopt a “blanket anti-menthol policy,” or otherwise act arbitrarily or capriciously under
the Administrative Procedure Act. The court, rejecting the dissent’s reliance on a Fifth
Circuit stay of another FDA order, concluded that FDA’s internal debates about menthol-
flavored e-cigarettes reflected a non-final, evolving understanding of scientific evidence
and the sort of ongoing deliberation that is a “hallmark of reasoned agency decision-
making” (Logic Technology Development LLC v. FDA).
• Health: In an apparent matter of first impression among circuit courts, the Second Circuit
held that Medicaid and Medicare reimbursements to a nursing home did not qualify as
benefits “for the use and benefit of another” under a statute criminalizing the conversion
of federal health program benefits (42 U.S.C. § 1320a-7b(a)(4)). As part of a False

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Claims Act suit, an employee of a health system alleged that the health system
wrongfully diverted Medicare and Medicaid reimbursements received by its nursing
homes in violation of Section 1320a-7b(a)(4). The court concluded that this statute does
not apply to payments that reimburse recipients for prior services rendered and that do
not contain any conditions attached as to how the recipient uses the payments in the
future (United States ex rel. Quartararo v. Cath. Health Sys. of Long Island Inc.).
• Indian Law: The Ninth Circuit held that the 1868 Treaty of Fort Bridger between the
United States and several bands of the Shoshone and Bannock Tribes does not make the
Tribes’ treaty-reserved hunting rights contingent on the Tribes permanently relocating to
designated reservations. Idaho officials had argued that the Treaty conditioned hunting
rights on the Tribes relocating to designated reservations, and that members of the
Shoshone’s Northwestern Band could not exercise the hunting rights because the
Northwestern Band does not reside on a designated reservation (Northwestern Band of
the Shoshone Nation v. Wooten).
• Intellectual Property: A divided Federal Circuit held that the Trademark Trial and
Appeal Board lacked authority to cancel a trademark registration because an attorney
submitted a false declaration as to its incontestability. Section 15 of the Lanham Act
provides that registered trademarks in continuous use for five consecutive years may
become “incontestable,” giving them additional legal protections. Although Section 14 of
the Lanham Act allows for cancellation of a trademark registration when the “registration
was obtained fraudulently,” the court held that this language does not authorize
cancellation of a registration when fraud is used to obtain incontestability status,
reasoning that “registration and incontestability are different rights” (Great Concepts,
LLC v. Chutter, Inc.).
• Maritime Law: The Fifth Circuit held that a one-to-one ratio of punitive damages to
compensatory damages that the Supreme Court applied as a damages cap in Exxon
Shipping Co. v. Baker does not apply in all maritime cases. The court concluded that
punitive damage awards may exceed that ratio in maritime cases depending on the
particular circumstances of the case (Kenai Ironclad Corp. v. CP Marine Servs., LLC).
• Securities: The Fifth Circuit upheld the Securities and Exchange Commission’s (SEC)
approval of a Nasdaq stock exchange rule requiring listed companies to disclose
information related to the diversity of their boards of directors. Against constitutional
challenges, the court held that Nasdaq, as a “self-regulatory organization,” is not a state
actor subject to constitutional constraints, and the rule at issue, although approved by the
SEC, is not attributable to the government and therefore not subject to constitutional
scrutiny. Against statutory challenges, the court held that the SEC approval was within its
statutory authority under the Securities Exchange Act of 1934, and that approval of the
rule was not arbitrary and capricious under the Administrative Procedure Act (Alliance
for Fair Board Recruitment v. SEC).

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Author Information

Bryan L. Adkins
Peter J. Benson
Legislative Attorney
Legislative Attorney

Jimmy Balser
Justin C. Chung
Legislative Attorney
Legislative Attorney

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