Notice & Comment

D. C. Circuit Review – Reviewed: COVID-relief funds, riverbeds, and guide dogs.

The D. C. Circuit issued only two opinions this week.  In Air Excursions LLC v. Yellen, No. 22-5125, the D.C. Circuit held that Air Excursions, LLC, a regional airline serving Alaska and the Pacific Northwest, had no “competitor standing” under Article III to challenge the Department of Treasury’s disbursement of $30 million in COVID-relief funds to FLOAT Shuttle, Inc., another air-transportation provider in Alaska.  FLOAT received the disbursement after it bought part of a bankrupt airline that had applied to the Department for the government funds.  FLOAT then allegedly used the funds to engage in anticompetitive behavior to Air Excursions’ detriment.  In an opinion authored by Judge Henderson, and joined by Judge Rao and Senior Judge Randolph, the court held that Air Excursions did not plausibly allege competitor standing.  Although a government action that results in an “actual or imminent increase in competition … will almost certainly cause an injury in fact,” Air Excursions’ complaint fell short.  Air Excursions failed to allege facts demonstrating the “causal link” between the disbursement of funds and FLOAT’s anti-competitive behavior.  Rather, the allegations showed only that the disbursement gave FLOAT a “windfall,” which is insufficient.

On Friday, in an opinion written by Senior Judge Randolph and joined by Judge Srinivasan and Judge Pillard, the D. C. Circuit held that North Dakota had a right to intervene in a lawsuit against the Department of the Interior brought by the Three Affiliated Tribes of the Fort Berthold Indian Reservation. In Mandan, Hidatsa and Arikara Nation v. Department of the Interior, No. 22-5185, the Tribes alleged that contrary to an opinion issued by Interior, the Tribes, not the State, own the bed of the Missouri River running through the Reservation and are entitled to royalties collected from the extraction of minerals underlying the riverbed. North Dakota was granted intervention on the question of ownership of the riverbed. Interior subsequently reversed its position on ownership, and the district court concluded that the State no longer had an interest in the remaining claims about royalties. The D.C. Circuit reversed, concluding that because Interior’s new determination did not decide legal title, which can only be decided by a court, the Tribes’ request that the district court order Interior to pay them could decide the title question and impair the State’s interest in the riverbed. Judge Pillard joined the opinion in full but wrote separately to underscore that although the State is entitled to protect its interests insofar as they are implicated by the Tribes’ claims, it cannot transform the suit from a dispute over Interior’s trust obligations into a dispute over title to the riverbed.

Senior Judge Tatel and his beloved guide-dog Vixen made news this week. The Lyft driver who denied them a ride made a mistake. A big mistake.

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