D.C. Circuit Review – Reviewed: A Potential Student Note (or Three)

by Aaron Nielson — Friday, Nov. 30, 2018@Aaron_L_Nielson

We have opinions this week. One is about jurisdiction and agency efforts to postpone a compliance deadline, another is about mootness with a congressional backdrop, and the third is about the Bill of Attainder Clause in the context of “a Russian-based cybersecurity company.” These cases got me thinking about potential student notes. What can I say? Here at Notice & Comment, we like to help!

Let’s start with venue/jurisdiction. Why? Because I suspect it will get less attention than the other cases, even though it is just as interesting. In Paralyzed Veterans of America v. Department of Transportation, the Court (per Judge Edwards, joined by Judges Griffith and Randolph) confronted an interesting wrinkle on a familiar question. Under federal law, “petitions for review of specified orders issued by the Secretary of Transportation must be filed in the United States Court of Appeals for the District of Columbia Circuit ….” This includes “orders issued pursuant to [49 U.S.C.] §§ 41708 and 41709.” What happens, however, if an agency makes a scrivener’s error and purports to issue an order that should fall within “§§ 41708 and 41709” but instead is labeled as falling within “49 U.S.C. §§ 329, 41101, and 41701”? Here, the agency delayed the effective date of a regulation that “require[s] airlines to report the number of wheelchairs and scooters that are delayed, damaged, or lost as checked luggage on domestic flights.” The underlying rule, all concede, falls within “§§ 41708 and 41709.” Yet the agency — erroneously — did not list those statutes in its “Extension Rule.” Does that mean that the challenge could be brought in district court?

No, says the D.C. Circuit. After all, among other reasons:

Why is this interesting? Well, because it goes to what jurisdiction means. Should the scrivener’s error doctrine work the same in this context as in the legislative context? I would say that this is a great student note topic but I fear that it doesn’t come up enough. But it is fun to think about.

Now let’s move on to mootness. In Pulphus v. Ayers, Judge Rogers (joined by Chief Judge Garland and Judge Katsas) addressed a suit by “Artist David Pulphus” — who painted the picture at issue when he was in high school — “and Congressman William Lacy Clay, Jr.” regarding “the decision of the Architect of the Capitol to remove Pulphus’ painting from the exhibition of the 2016 winners of the Congressional Art Competition.” (The opinion does not include a picture, but one is found here.) The painting is controversial, leading to its removal. Constitutional? The Court didn’t address the First Amendment question because the case is moot:

(There is more going on, but this is a good sample.)

Is there a student note to be written here? The mootness analysis is pretty straightforward. But the merits — which the Court didn’t reach — may warrant some time. Is this government speech?

Finally, the Bill of Attainder case. In Kaspersky Lab, Inc. v. DHS, Judge Tatel (joined by Judges Edwards and Ginsburg) authored a comprehensive opinion on bills of attainder.* I confess; I’m not an expert on this particular clause so I learned a lot. (I suspect Tatel enjoyed the opportunity to explore the Clause too; the opinion sure reads that way.) Here is how it begins:

Here is an interesting discussion:

As is this:

Here is a key section:

And here is another:

There is more, but you get the gist.

Students, someone should write an article about corporations and the Bill of Attainder Clause. My sense is that the Clause should apply to corporations too, but the D.C. Circuit has left the issue open. Seems like an interesting student note ….

 

* If you want to know more about the Bill of Attainder Clause, here is a great student note by Anthony Dick, now a very accomplished lawyer. Unrelated, but also interesting, if you want to read a law review article about another aspect of the Constitution that has not received a lot of attention, consider Recovering Our Forgotten Preamble, which was just published in the Southern California Law Review. It’s not a note — two of my BYU colleagues wrote it — but it is fascinating.

 

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About Aaron Nielson

Professor Nielson is an associate professor at Brigham Young University Law School. Before joining the academy, Professor Nielson was a partner in the Washington, D.C. office of Kirkland & Ellis LLP (where he remains of counsel). He also has served as a law clerk to Justice Samuel A. Alito, Jr. of the U.S. Supreme Court, Judge Janice Rogers Brown of the U.S. Court of Appeals for the D.C. Circuit, and Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit. All views expressed are the author's alone. Follow him on Twitter @Aaron_L_Nielson.

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