Notice & Comment

D.C. Circuit Review – Reviewed: Standing

Standing is a big deal. Most agree, for instance, that the law professors suing President Trump about the Emoluments Clause “pretty clearly lack Article III standing.” Likewise, the States, members of Congress, and interest groups seeking to intervene in PHH Corp. v. CFPB no doubt are going to face a fierce challenge to their standing. And the D.C. Circuit decided an interesting standing opinion this week. (More on that below.)

Standing, of course, is also important in another respect — if you want to watch oral argument, you have to stand in line. This week, the D.C. Circuit announced a new policy for oral argument: “Only individuals who actually plan to attend argument will be allowed to line up inside the courthouse for Court of Appeals arguments. ‘Line standers’ will not be permitted.” Longtime readers know that I have strong opinions about standing in line. It seems to me that in 2017, we can devise a better system for allocating seats than making people waste time essentially loitering around the courthouse. The D.C. Circuit is trying to help by eliminating “line standers” (though how will this prohibition be enforced?), but perhaps it should think about online ticket distribution or something similar.*

Anyway, this week the D.C. Circuit issued five opinions, only one of which involves administrative law. The biggest case, however, does have an interesting standing discussion.

In Act Now to Stop War and End Racism Coalition v. District of Columbia, Judge Pillard (joined by Judges Rogers and Sentelle) addressed a challenge to the District’s rule requiring that event-related signs be taken down soon after the advertised event is over, while allowing non-event related signs to stay up longer. If you follow First Amendment litigation, this opinion is a “must read.” (The Court concluded that the rule is not a content-based regulation of speech.) What I particularly care about, however, is standing. The District argued that the Muslim American Society Freedom Foundation “ceased operating in 2011, [and] so has ‘lost standing’ during the pendency of its suit.” Specifically, “[t]he District challenges MASF’s existence based on an online newspaper report and a record from the District of Columbia Department of Consumer and Regulatory Affairs. While this appeal was pending, the District learned of an online Muslim Link article reporting that MASF ‘announced its closure on June 17, 2011.'” The panel concluded, however, that at summary judgment, it enough that the plaintiff filed an affidavit saying MASF still exists “as an unincorporated nonprofit association.” (There is more going on, but this a good introduction.)

Next, consider 800 River Road Operating Company v. NLRB. Judge Brown (joined by Judges Rogers and Millett) rejected a challenge to the agency’s decision. Relevant here, the challenger walked out of a hearing. And that was a mistake: “This voluntary choice means we cannot separate the harm Woodcrest suffered (if any) as a result of the Hearing Officer’s denial [of a subpoena request] from the prejudice caused by Woodcrest’s decision to truncate the hearing.” Thus, “[t]he company’s failure to meet [its] burden has less to do with the Hearing Officer’s rulings than its lawyer’s litigation choices.” What’s the lesson? You should stand up for your rights … to a point.

The other cases are less interesting, at least if your focus is admin law. United States v. Kenny (Judges Rogers, joined by Judges Kavanaugh and Wilkins) holds that a district court who said a sentence “has to be consecutive” nonetheless was aware of its sentencing discretion. There is not “a talismanic formulation for signaling discretion.” United States v. Vyner (Judge Rogers, joined by Judge Millett) holds that counsel was not ineffective for advising a guilty plea when the client knowingly possessed an altered foreign passport: “Counsel’s assistance to Vyner, however, was well within the bounds of the competence required of counsel in criminal cases in view of the sole and prevailing interpretation in the federal circuit courts of appeal, the plain text of Section 1546(a)’s statutory and regulatory predicates, and the absence of challenges to those interpretations at the time of Vyner’s guilty plea.” (Judge Brown concurred in the judgment without opinion.) And United States v. Jones (Judge Williams, joined by Judges Kavanaugh and Wilkins) holds that an appeals court can review a supposedly unreasonable denial of a request to adjust a sentence downward (contrary to the Sixth Circuit) but nonetheless affirms the district court.

So there you go — another week of cases. What? You think this week’s post is boring. Well, it’s free, so you do really have standing to complain?

* To be sure, the number of cases that would require such a thing is small; at least in this regard, the D.C. Circuit is not like the Supreme Court. Even so, why can’t the court at least distribute tickets in advance?

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