David Pulphus v. Stephen Ayers
909 F.3d 1148
| D.C. Cir. | 2018Background
- The Congressional Art Competition displays each congressional district’s winning high-school artwork in the Cannon Tunnel for ~11 months; the Architect of the Capitol reviews suitability under HOBC policy.
- Congressman Clay selected David Pulphus’s painting "Untitled #1" as the 2016 First District winner; it hung in the Cannon Tunnel for ~7 months without objection.
- After media criticism and public outcry in late 2016/early 2017, the Architect directed removal of Untitled #1 from the Cannon Tunnel, citing the Suitability Guidelines barring works depicting contemporary political controversy.
- Pulphus and Clay sued the Architect alleging First Amendment viewpoint discrimination and sought a preliminary injunction to rehang the painting and protect it from further removal; the district court denied the injunction, concluding the display is government speech.
- On appeal, the Architect moved to dismiss as moot because the 2016 exhibition period had ended, the Congressional Institute (an independent third party) controls the archival online display of past winners, and claimed any reputational injuries were not redressable by reversing the removal.
- The court held the appeal moot: the exhibition ended, the Architect cannot bind the independent Institute to repost the painting, reputational harms did not directly flow from a stigmatizing government action, and the capable-of-repetition-yet-evading-review exception did not apply.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of appeal from denial of preliminary injunction | Reversal would at least rehang the painting and remedy ongoing harms (virtual exhibition omission; reputational injury) | 2016 exhibition ended so injunction cannot restore physical display; Institute is independent and not bound by injunction; reputational harms not redressable | Appeal dismissed as moot: no meaningful relief available and alleged harms are not redressable |
| Redressability of omission from third-party (Congressional Institute) online archive | Architect’s reversal would likely lead Institute to repost painting, remedying injury | Institute is independent; no demonstrably substantial likelihood it would repost; injunction cannot bind it | No redressability; injunction would not likely remedy omission |
| Reputational injury as ongoing, judicially remediable harm | Pulphus cannot list the award or suffers stigma from removal (retroactive disqualification) | Removal did not strip winner status; public criticism—not Architect’s action—caused stigma; removal decision not inherently stigmatizing | Reputational harms do not flow directly from a stigmatizing government action and are not redressable by injunction |
| Application of capable-of-repetition-yet-evading-review exception | Short exhibition period fits the exception; future similar controversy possible | Pulphus is no longer eligible; HOBC changed review rules; no reasonable expectation same parties will face same action again | Exception inapplicable: no reasonable expectation of repetition between same parties |
Key Cases Cited
- Honig v. Doe, 484 U.S. 305 (1988) (federal courts may only decide actual, ongoing controversies)
- Church of Scientology of California v. United States, 506 U.S. 9 (1992) (case-mooting events require dismissal when no meaningful relief can be granted)
- Friends of the Earth v. Laidlaw, 528 U.S. 167 (2000) (redressability requirement applies to each form of relief)
- McBryde v. Comm. to Review Circuit Council Conduct & Disability Orders of Judicial Conference of U.S., 264 F.3d 52 (D.C. Cir. 2001) (reputational injury requires tangible, concrete effect to avoid mootness)
- Foretich v. United States, 351 F.3d 1198 (D.C. Cir. 2003) (governmental stigmatizing action can create ongoing, redressable reputational harm)
- Meese v. Keene, 481 U.S. 465 (1987) (secondary reputational effects from government action can deter expression)
- Teton Historic Aviation Foundation v. Department of Defense, 785 F.3d 719 (D.C. Cir. 2015) (third-party action with clear incentive can be effectively remedied by injunction on defendant)
- Spencer v. Kemna, 523 U.S. 1 (1998) (standard for capable-of-repetition-yet-evading-review exception)