Congressional Court Watcher: Recent Appellate Decisions of Interest to Lawmakers (December 18–December 25, 2023)
Legal Sidebari
Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(December 18–December 25, 2023)
Updated December 26, 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
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Decisions of the Supreme Court
Last week, the Supreme Court agreed to hear arguments on four emergency applications to stay the
implementation of the Environmental Protection Agency’s (EPA’s) “Good Neighbor” Plan, which is
intended to limit ozone-forming emissions from power plants and industrial facilities. Under the Clean
Air Act (CAA), a state must submit a State Implementation Plan (SIP) for EPA’s approval detailing how it
will meet national ambient air quality standards (NAAQS) set by the agency. If EPA concludes that the
SIP is inadequate, the agency will issue a federal plan in its place. The CAA imposes “good neighbor”
requirements on upwind states’ SIPs to ensure that emission activities within their jurisdictions do not
impede downwind states from meeting NAAQS. In 2023, after EPA denied several upwind states’ SIPs,
the agency issued the “Good Neighbor” Plan to establish an emission-control program in place of those
SIPs. In considering whether to stay the plan while the parties litigate the challenge in the lower courts,
the Court has asked the parties to address the basis for the SIP disapprovals and whether the EPA plan is
reasonable given that only some upwind states are subject to it (Ohio v. EPA; Kinder Morgan, Inc. v. EPA;
Am. Forest & Paper Ass’n v. EPA; U.S. Steel Corp. v. EPA).
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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: Without reaching the merits, the Ninth Circuit held that a district court
improperly dismissed as time-barred a civil suit brought under 18 U.S.C. § 2255 by a
plaintiff who alleged he was a victim of child pornography when, as an infant, he was
photographed nude for the cover of the music group Nirvana’s 1991 record Nevermind.
When the plaintiff filed suit in 2021, there was a 10-year statute of limitations for suits by
victims of child pornography brought under § 2255. (Congress later eliminated this
statute of limitations.) The Ninth Circuit held that the plaintiff’s case was not time-barred,
however, because he alleged injuries suffered on account of the 2021 reissue of the
album, which occurred within 10 years of the date he filed his complaint. In so doing, the
court held that each republication of child pornography may constitute a new injury for
the victim that constitutes a basis for a § 2255 claim (Elden v. Nirvana L.L.C.).
• Civil Procedure: The Eleventh Circuit held that former White House chief of staff Mark
Meadows was not entitled to remove Georgia’s prosecution of him to federal court based
on federal officer removal under 28 U.S.C. § 1442(a)(1), where the state charged him
with two state law crimes: conspiracy in violation of the Georgia Racketeer Influenced
and Corrupt Organizations Act and soliciting the violation of oath by a public officer in
connection with the 2020 presidential election. Reasoning that federal officer removal
under § 1442(a)(1) does not apply to former federal officers and that, even assuming it
did, removal would still be improper because the charged conduct was not related to
Meadows’s official duties as then-President Trump’s chief of staff, the circuit panel
affirmed the district court’s remand order (Georgia v. Meadows).
• Criminal Law & Procedure: The Sixth Circuit held that a sentencing court permissibly
considered additional factors together with those it was statutorily required to consider
when it revoked the supervised release of a criminal offender found in possession of a
firearm. 18 U.S.C. § 3583(g) directs a sentencing court to revoke an individual’s
supervised release if found in possession of a firearm and to require the individual to
serve a term of imprisonment authorized under subclause (e) of the statute. That
provision, in turn, instructs the court to consider a subset of factors listed in 18 U.S.C.
§ 3553(a) when deciding the appropriate sentence. The Sixth Circuit held that the lower
court was not limited to consider only the listed subset of factors but could also
permissibly consider related factors listed in § 3553(a) (United States v. Esteras).
• Energy: The Sixth Circuit held that the Chair of the Federal Energy Regulatory
Commission (FERC) exceeded his authority when he moved to remand a ratemaking
challenge so that FERC could reconsider the underlying ratemaking decision. Following
the reviewing court’s grant of the motion to remand, FERC reversed course on its earlier
ratemaking decision. Examining the text and structure of the governing statutes, the
circuit panel held that the Chair exceeded his administrative authority by moving to
remand the challenge without acquiring the approval of a quorum majority of the
Commission. In terms of remedy, the circuit court majority opted not to vacate changes
made by FERC to the challenged ratemaking decision upon remand and instead directed
FERC to consider whether it would have done anything differently given the Chair’s
legal mistake (Elec. Power Supply Ass'n v. FERC).
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• Transportation: The Tenth Circuit held that 49 U.S.C. § 1153(b)(1), which requires a
person challenging a final order of the National Transportation Safety Board (NTSB) to
file an appeal within 60 days of the order’s issuance absent a “reasonable ground” for the
delay, is a claim-processing rule rather than jurisdictional. As a result, the court decided
that a petitioner’s failure to comply with the 60-day deadline did not prevent the court
from entertaining his appeal of an NTSB decision, but gave the Federal Aviation
Administration (FAA) a basis to argue that the court should deny the petition. On the
merits, the court held that the petitioner had failed to provide a reasonable ground for not
filing his appeal within the 60-day period, and denied it as untimely (McWhorter v. FAA).
Author Information
Michael John Garcia
Karen Sokol
Deputy Assistant Director/ALD
Legislative Attorney
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Disclaimer
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