David Pulphus v. Stephen Ayers , 909 F.3d 1148 ( 2018 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 28, 2018 Decided November 30, 2018
No. 17-5095
DAVID PULPHUS AND WILLIAM LACY CLAY, REPRESENTATIVE,
UNITED STATES HOUSE OF REPRESENTATIVES,
APPELLANTS
v.
STEPHEN T. AYERS, IN HIS OFFICIAL CAPACITY AS ARCHITECT
OF THE CAPITOL,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00310)
Kymberly K. Evanson argued the cause for appellants.
With her on the briefs were Matthew J. Segal and Samuel L.
Feder.
Isaac C. Belfer was on the brief for amici curiae Arts &
Business Council of Greater Boston, Inc., et al. in support of
appellants.
Joshua M. Salzman, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief was Scott
R. McIntosh, Attorney. Marina U. Braswell and R. Craig
2
Lawrence, Assistant U.S. Attorneys, and Christopher Hair,
Special Assistant U.S. Attorney, entered appearances.
Before: GARLAND, Chief Judge, and ROGERS and KATSAS,
Circuit Judges.
Opinion for the court filed by Circuit Judge ROGERS.
ROGERS, Circuit Judge: Artist David Pulphus and
Congressman William Lacy Clay, Jr., appeal the denial of their
motion for a preliminary injunction in connection with the
decision of the Architect of the Capitol to remove Pulphus’
painting from the exhibition of the 2016 winners of the
Congressional Art Competition. After unsuccessfully asking
that the House Office Building Commission overrule the
Architect’s decision, the artist and the Congressman sued the
Architect for violation of their First Amendment rights. They
also sought a preliminary injunction directing the Architect to
rehang the painting in the exhibition, which the district court
denied. Because the 2016 Congressional Art Competition is
over and no other concrete, redressable injury is alleged that
was caused by the Architect’s removal decision, we grant the
Architect’s motion to dismiss the appeal as moot.
I.
The relevant facts are undisputed. The Congressional Art
Competition is designed to encourage artistic creativity by high
school students.1 Each participating Member of Congress
1
See JERRY W. MANSFIELD, CONGRESSIONAL RESEARCH SERVICE,
THE CONGRESSIONAL ARTS CAUCUS AND THE CONGRESSIONAL
ART COMPETITION: HISTORY AND CURRENT PRACTICE (2013) at 4,
Exhibit A to Declaration of Kymberly K. Evanson, Esq., in Support
of Preliminary Injunction (Feb. 24, 2017). See also Farah v. Esquire
Magazine, 736 F.3d 528, 534 (D.C. Cir. 2013).
3
solicits entries from high-school students in the Member’s
congressional district and selects a winner for the year. The
winning artwork is displayed for approximately eleven months
in the Cannon Tunnel, which connects the U.S. Capitol to the
Cannon House Office Building. During that time, the artwork
is also displayed on the House of Representatives’ website.
The Congressional Institute, a non-profit organization that
assists with administration of the Congressional Art
Competition and hosts a reception to honor the winning artists,
also maintains a searchable online catalogue of winning entries
dating back to 2009.
The Architect of the Capitol is responsible for the
operations and care of House Office Buildings, subject to the
House Office Building Commission (“HOBC”) consisting of
the Speaker of the House and two Members selected by the
Speaker. See 2 U.S.C. § 2001. The Architect also assists the
House of Representatives Fine Arts Board, which may accept
“works of fine art, historical objects, and similar property” for
display in House Office Buildings. See 2 U.S.C. §§ 2121,
2122. Since the initial Congressional Art Competition in 1982,
the HOBC has assigned the Architect the responsibility for
reviewing whether the winning student artwork is suitable for
exhibition in the Capitol buildings.2 The Suitability Guidelines
for artwork in the 2016 Competition provided, in relevant part:
[T]he final decision regarding the suitability of all
artwork for the 2016 Congressional Art Competition
exhibition in the Capitol will be made by a panel of
qualified persons chaired by the Architect of the
Capitol. While it is not the intent to censor any
2
See Letter from Hon. Thomas P. O’Neill, Jr., Speaker and
Chairman, HOBC, to Hon. Fred Richmond, Chairman,
Congressional Arts Caucus (Oct. 14, 1981).
4
artwork, we do wish to avoid artwork that is
potentially inappropriate for display in this highly
travelled area leading to the Capitol.
Artwork must adhere to the policy of the House Office
Building Commission. In accordance with this
policy, exhibits depicting subjects of contemporary
political controversy or a sensationalistic or gruesome
nature are not allowed. It is necessary that all artwork
be reviewed by the panel chaired by the Architect of
the Capitol and any portion not in consonance with the
Commission’s policy will be omitted from the exhibit.
Congressman William Lacy Clay, Jr., of the First District
of Missouri, convened a panel of three local artists in April
2016 to select the winner of the 2016 Congressional Art
Competition from his district. The panel unanimously selected
Untitled #1, a painting by high-school senior David Pulphus.
Congressman Clay signed the official form for the 2016
Congressional Art Competition, indicating that he had “viewed
the artwork,” “approve[d] of its content,” and was “responsible
for its content.” A May 6 press release issued by his office
described Untitled #1 as “a colorful landscape of symbolic
characters representing social injustice, the tragic events in
Ferguson, Missouri, and the lingering elements of inequality in
modern American society.”3 Untitled #1 hung in the Cannon
Tunnel exhibition alongside the winning artwork from other
3
Ferguson, Missouri, is the St. Louis suburb where a white
police officer fatally shot an unarmed African-American
named Michael Brown in August 2014. Alex Gangitano &
Rema Rahman, Controversial Ferguson Painting Removed
from Display for Third Time, ROLL CALL (Jan. 10, 2017),
https://www.rollcall.com/news/hoh/clay-puts-ferguson-police-
tension-painting-back-up-in-capitol, Ex.V, Evanson Decl.
5
congressional districts for nearly seven months without
objection.
On December 29, 2016, the Independent Journal Review
published on its website an article describing Untitled #1 as
“depicting police officers as pigs with guns terrorizing a black
neighborhood,” and quoting criticism of the painting by
Congressman Dave Reichert and a senior congressional aide.
Jason Howerton, Painting of Cops as Pigs Hung Proudly in
U.S. Capitol, INDEP. J. REV. (Dec. 29, 2016), Ex. L, Evanson
Decl. A Fox News television personality urged viewers to call
their representatives and ask that Untitled #1 be removed from
the Cannon Tunnel. The presidents of police unions in several
major cities wrote to the House Speaker urging that the painting
be taken down. Thereafter, individual Members of Congress
removed the painting from the Cannon Tunnel and returned it
to Congressman Clay’s office on three occasions. Clay Decl.
in Supp. of Prelim. Inj., ¶¶ 16, 20, 21.
On January 11, 2017, Congressman Reichert wrote the
Architect of the Capitol to request “an official review” of
Untitled # 1 to determine whether it was qualified to hang in
the Capitol, referencing the 2016 Suitability Guidelines. The
Congressional Institute removed the painting from its website
on January 14, 2017. The Architect subsequently directed his
staff to remove Untitled #1 from the Cannon Tunnel, informing
Congressman Clay by letter of January 17, 2017, that he had
“determined that [Untitled # 1] does not comply with the
HOBC artwork prohibition.” The Architect noted that “[t]he
current exhibition will conclude in May of this year as is our
custom.” On the same day, Congressman Clay sought,
ultimately unsuccessfully, to have the HOBC overrule the
Architect’s decision.
6
The artist and Congressman Clay sued the Architect of the
Capitol on February 21, 2017, seeking declaratory and
injunctive relief for violation of their First Amendment rights.
They also moved for a preliminary injunction directing the
Architect to reverse his decision, to rehang Untitled #1 in the
Cannon Tunnel until the expiration of the 2016 Congressional
Art Competition display period or the conclusion of this
litigation on the merits, whichever occurred first, and to protect
Untitled #1 from further unauthorized removal. They argued
that the Congressional Art Competition is a limited public
forum and that the Architect had engaged in unconstitutional
viewpoint discrimination by excluding Untitled #1 from that
forum. The district court denied the motion for a preliminary
injunction, ruling the artist and the Congressman were unlikely
to succeed on the merits of their First Amendment claim
because the Congressional Art Competition is government
speech, and when the government speaks, it “is free to
discriminate based on viewpoint.” Pulphus v. Ayers, 249 F.
Supp. 3d 238, 244, 247, 253–54 (D.D.C. 2017). The artist and
the Congressman appeal.
II.
Our consideration of this appeal begins and ends with the
jurisdictional objection raised by the Architect’s motion to
dismiss the appeal as moot in view of intervening events.
Appellants sought preliminary injunctive relief for limited
purposes but nonetheless respond their appeal is not moot
because they suffer ongoing injuries caused by the Architect’s
removal of Pulphus’ painting from the 2016 exhibition.
Maintaining that their injuries stem from the continued
exclusion of Untitled #1 from the virtual exhibition of past
Competition winners on the Congressional Institute’s website,
and from ongoing reputational harm, they conclude a
preliminary injunction reversing the Architect’s decision
would provide them with at least some relief. Further, they
7
respond their appeal falls within the exception to mootness for
controversies that are capable of repetition yet evading review.
Section 2, Article III of the U.S. Constitution provides, in
relevant part, that “[t]he judicial Power shall extend to . . .
Cases . . . [and] Controversies.” Consequently,
the Constitution permits federal courts to adjudicate
only “actual, ongoing controversies.” Honig v. Doe,
484 U.S. 305, 317 (1988). If events outrun the
controversy such that the court can grant no
meaningful relief, the case must be dismissed as moot.
See, e.g., Church of Scientology of California v.
United States, 506 U.S. 9, 12 (1992). This
requirement applies independently to each form of
relief sought, see Friends of the Earth v. Laidlaw, 528
U.S. 167, 185 (2000), and “subsists through all stages
of federal judicial proceedings, trial and appellate,”
Lewis v. Continental Bank Corp., 494 U.S. 472, 477
(1990).
McBryde v. Comm. to Review Circuit Council Conduct &
Disability Orders of Judicial Conference of U.S., 264 F.3d 52,
55 (D.C. Cir. 2001).
This appeal is moot:
1. The 2016 Congressional Art Competition is over, and
for that reason, Untitled #1 can no longer be displayed in the
Cannon Tunnel as appellants sought in moving for a
preliminary injunction. The eleven-month exhibition period
for the winners of the 2016 Congressional Art Competition
ended in May 2017. A few weeks later, winning artwork from
the 2016 Competition was removed from the Cannon Tunnel
and replaced with the winning artwork from the 2017
8
Competition. In these circumstances, there is no need to
protect Untitled #1 against unauthorized removal from the
Cannon Tunnel. And, the Architect adds, the winners of the
2016 Competition no longer appear on the House of
Representatives’ website.
2. With regard to the “virtual” display hosted by the
Congressional Institute, appellants have not shown “a
‘substantial likelihood’ that the requested [preliminary] relief
will remedy the alleged injury in fact.” Vt. Agency of Nat. Res.
v. United States ex. rel. Stevens, 529 U.S. 765, 771 (2000). The
Congressional Institute is an independent third party that is not
before the court. Although it assists in administration of the
Congressional Art Competition, the Architect does not control
its online display of past winners. Consequently, the Institute
would not be bound by an injunction ordering the Architect to
reverse his decision. See FED. R. CIV. P. 65(d)(2);
Microsystems Software v. Scandinavia Online AB, 226 F.3d 35,
43 (1st Cir. 2000); 11A CHARLES ALAN WRIGHT ET AL.,
FEDERAL PRACTICE & PROCEDURE § 2956 (3d ed. 2013).
Further, appellants fail to show that the Congressional
Institute would voluntarily return Untitled #1 to its website if
the Architect’s decision were to be reversed by the court in the
context of the instant appeal. Unlike the third party in Teton
Historic Aviation Foundation v. Department of Defense, 785
F.3d 719 (D.C. Cir. 2015), which had an economic incentive to
act, see id. at 725–28, there is no indication that the
Congressional Institute would have an obvious incentive to
repost Untitled #1. Even assuming the Institute’s interest in
maintaining an accurate record of past winners might lead it to
repost Untitled #1, appellants have not carried their burden of
showing this outcome is “very likely,” id. at 728. After all, a
preliminary injunction could be dissolved upon further
litigation. See WRIGHT ET AL., supra, § 2950. Given the high-
9
profile controversy over Untitled #1, there would appear to be
good reason at this point for the Congressional Institute not to
repost the painting no matter how the court resolves the instant
appeal.
3. Appellants’ theory of reputational harm is also
insufficient to save this appeal from being moot. Reputational
harm may constitute an ongoing, redressable injury where it
“derives directly from an unexpired and unretracted
government action.” Foretich v. United States, 351 F.3d 1198,
1213 (D.C. Cir. 2003); see also Meese v. Keene, 481 U.S. 465,
473–74 (1987); McBryde, 264 F.3d at 57. In Foretich,
McBryde, and Keene, a governmental designation directly
harmed the plaintiff’s professional reputation because the
designation was inherently stigmatizing. In Foretich, Congress
had “singled out” the plaintiff for legislative punishment based
on allegations that he was “a child abuser and a danger to his
own daughter,” 351 F.3d at 1204, 1213, which “led to
harassment by the media, estrangement from his neighbors, and
loss of business and professional opportunities,” id. at 1211. In
McBryde, an “apparently upstanding federal judge” suffered
reputational harm due to an official determination that he had
“‘engaged for a number of years in a pattern of abusive
behavior’ that was ‘prejudicial to the effective and expeditious
administration of the business of the courts,’” and from the
Fifth Circuit’s record of his public reprimand. 264 F.3d at 56–
57 (quoting an investigative report prepared for the Judicial
Council of the Fifth Circuit Court of Appeals). In Keene, a
state senator was deterred from exhibiting three films that the
Justice Department had identified as “political propaganda”
under the Foreign Agents Registration Act for fear “his
personal, political, and professional reputation would suffer
and his ability to obtain re-election and to practice his
professional could be impaired.” 481 U.S. at 473.
10
“In this circuit, when injury to reputation is alleged as a
secondary effect of an otherwise moot action, we have required
that ‘some tangible, concrete effect’ remain, susceptible to
judicial correction.” McBryde, 264 F.3d at 57 (quoting
Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1019 (D.C. Cir.
1991)); accord Foretich, 351 F.3d at 1212–13. No such effect
exists here.
Appellants allege that Pulphus suffers an ongoing
reputational injury because he can no longer describe winning
the 2016 Congressional Art Competition as an honor he has
received, for example by listing it on his résumé. Compl. ¶ 73.
On appeal, they maintain his injury results from the Architect’s
decision to “retroactively disqualify” his painting from the
Competition. Appellants’ Br. 13, 56–57. But the record shows
that the Architect did not strip Pulphus of his status as a winner
of the 2016 Congressional Art Competition; his decision was
far more limited. In the January 17, 2017, letter informing
Congressman Clay of his decision, the Architect stated that
Untitled #1 was removed from the 2016 exhibition because it
“does not comply with the HOBC’s artwork prohibition [i.e.,
the 2016 Suitability Guidelines].” The Architect has
acknowledged that Pulphus remains the winner of the 2016
Congressional Art Competition from the First District of
Missouri. See Appellees’ Br. 25–26; Oral Arg. Tape 27:57–
28:07, 28:55–29:15.
Appellants’ other allegations of reputational injury do not
directly result from the Architect’s decision to remove Untitled
#1 from the Cannon Tunnel 2016 exhibition. Their claims of
ongoing reputational harm due to being publicly labeled as
“anti-police,” Pulphus Suppl. Decl. ¶ 4; Clay Suppl. Decl. ¶ 11,
stem from public criticism of Untitled #1, not the Architect’s
decision to remove it from the Cannon Tunnel, see Clay Decl.
¶ 14–17, 25, 34. Appellants acknowledge in their brief that
11
these attacks predated the Architect’s decision. See
Appellants’ Br. 56. Similarly, Congressman Clay has not
demonstrated that the diminished participation of his
constituents in the 2017 Congressional Art Competition
resulted directly from the Architect’s removal decision rather
than the public controversy surrounding the painting.
In any event, there is little reason to conclude that a
preliminary injunction would redress these reputational
injuries. In Foretich, McBryde, and Keene, the court could
grant relief because the challenged government action was
itself stigmatizing. Not so here. The Architect’s removal
decision did not brand Untitled #1 as objectionable; it merely
reflected the Architect’s determination that the painting did not
comply with the HOBC’s prohibition in the Suitability
Guidelines on exhibiting “artwork that depicts subjects of
contemporary political controversy or a sensationalistic or
gruesome nature.” That determination is not inherently
stigmatizing. Appellants’ requested preliminary injunction
would not change that determination for they acknowledge that
Untitled #1 in fact depicts a subject of contemporary political
controversy, namely, “the treatment of African-Americans by
law enforcement,” Appellants’ Br. 22.
4. Appellants’ invocation of the capable-of-repetition-yet-
evading-review exception to mootness, which affords the court
jurisdiction to consider an otherwise moot claim, is unavailing.
“This exception applies where ‘(1) the challenged action [is] in
its duration too short to be fully litigated prior to cessation or
expiration, and (2) there [is] a reasonable expectation that the
same complaining party [will] be subject to the same action
again.’” Senate Permanent Subcomm. on Investigations v.
Ferrer, 856 F.3d 1080, 1088 (D.C. Cir. 2017) (quoting Spencer
v. Kemna, 523 U.S. 1, 17 (1998) (alterations in original)).
Appellants fail to meet the second requirement.
12
It is clear that the controversy between Pulphus and the
Architect will never repeat itself. Pulphus has graduated from
high school, so he is no longer eligible to enter the
Congressional Art Competition. Although Congressman Clay
continues to be eligible to participate as a Member of Congress,
the controversy will not reoccur between the exact same
parties: although the suitability requirements for student
submissions remain the same, the HOBC revised the rules for
the 2017 Congressional Art Competition to make itself the final
decisionmaker in suitability reviews requested by a Member of
Congress. See Ayers Suppl. Decl. ¶ 4. (June 16, 2017).
Further, Congressman Clay has not demonstrated a reasonable
expectation that the HOBC will find his future artwork
selections unsuitable for display, for he does not suggest that
he intends to select artwork that violates the Suitability
Guidelines and courts generally assume that a party will abide
by laws and regulations going forward, see McBryde, 264 F.3d
at 56. Even if the Congressman were to select another piece
depicting a contemporary political controversy, it appears
likely that the HOBC would defer to his wishes absent the sort
of public uproar that surrounded Untitled #1. By Congressman
Clay’s own account, what happened in 2016 marks the first
time in the Congressional Art Competition’s 35-year history
that a piece of artwork has been excluded over the objection of
the sponsoring Member. See Compl. ¶ 69–70; Clay Decl. ¶ 40;
Appellants’ Br. 17. That history and the fact that Congressman
Clay has participated in the 2017 Congressional Art
Competition without incident demonstrate the mootness
exception is inapplicable.
Accordingly, the court grants the Architect’s motion and
dismisses this appeal from the denial of a preliminary
injunction as moot.