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).

Congressional Research Service

https://crsreports.congress.gov

LSB11075

CRS Legal Sidebar

Prepared for Members and

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Congressional Research Service

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.

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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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Congressional Research Service

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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

Deputy Assistant Director/ALD

Karen Sokol

Legislative Attorney

Congressional Research Service

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Disclaimer

This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff

to congressional committees and Members of Congress. It operates solely at the behest of and under the direction of

Congress. Information in a CRS Report should not be relied upon for purposes other than public understanding of

information that has been provided by CRS to Members of Congress in connection with CRS’s institutional role.

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