Divided D.C. Circuit Panel Upholds Injunction Against White House Ballroom Construction; Next Stop, One First Street

This morning, declaring that “the White House is the People’s House,” a divided panel of the U.S. Court of Appeals for the D.C. Circuit upheld the district court injunction against the construction of the new White House ballroom. According  to the court, “Whether or not a massive ballroom should be constructed is for Congress to decide and is not a matter for Executive self-help.”

The 100-page majority opinion in National Trust for Historic Preservation v. National Park Service was written jointly by Judges Millett and Garcia. Judge Rao dissented.

The panel stayed its decision for fourteen days for the express purpose of allowing the Trump Administration to seek review from the Supreme Court, and I would expect such a filing in due course.

If the Supreme Court does intervene, either on the interim docket or after argument, this case might present a good opportunity for the justices to revisit–and perhaps restrain–the permissive approach to standing in cases against the federal government, particularly those relying upon aesthetic standing. As Judge Rao explains in her dissent, there are serious questions about NTHP’s standing here, both as an organization and as a representative of members who claim “injury” from the ballroom’s construction.

On the first point, it is not clear NTHP can claim standing on its own behalf given its limited charter:

The fundamental problem for the Trust’s standing is that
this lawsuit is not germane to its purposes because Congress
did not provide the Trust with any statutory authority or interest
pertinent to the White House. . . .

The Trust . . . is not a private association. It is a
congressionally chartered nonprofit corporation that “owes its
creation to an act of Congress” and “derives all of its capacities,
faculties and powers” from statute.  . . . As a congressionally
chartered nonprofit, the Trust can sue only to vindicate its
statutory authority.
The Trust’s lawsuit is not germane to its statutory purposes
and powers. Congress empowered the Trust to serve four
enumerated “purposes”: (1) receiving donations of historic
sites, buildings, and objects; (2) preserving and administering
those sites, buildings, and objects; (3) accepting and
administering gifts to carry out its preservation efforts; and
(4) executing other specified statutory functions. 54 U.S.C. § 312102(b). The list notably does not include any sweeping
purposes and simply states the principal actions the Trust is
authorized to take. Congress also provided more detail about
the “powers” of the Trust, all of which may be exercised only
“[t]o the extent necessary to enable it to carry out the functions
vested in it by this chapter.” Id. § 312105(a). Of particular
relevance here, the Trust may acquire real property for
preservation but is prohibited from acquiring property within
the National Park System. See id. § 312105(g).
The White House is located within President’s Park, which
is part of the National Park System. The Trust therefore has no
statutory authority related to the White House: it cannot acquire
donations of real property within President’s Park, and it
cannot preserve or administer such property. . . .

Our associational standing precedents allow private
entities some latitude to define their purposes. The Trust,
however, is a federal entity limited to exercising the powers
conferred by Congress. It cannot generate standing by
redefining its purposes to include aesthetic oversight of the
White House, property that Congress has explicitly withheld
from the Trust’s purview. This lawsuit is not germane to the
Trust’s statutory authority, and therefore the Trust lacks
standing to challenge the building of the ballroom

As Judge Rao notes further, the theory of germaneness adopted by the panel majority were forfeited by the parties (and we know how the current Court feels about lower courts deviating from the party-presentation principle).

Judge Rao also challenges the overly broad assertion of aesthetic injury asserted by the NTHP member who submitted an affidavit to support the organization’s standing.

The Trust rests its standing on a single member, Alison
Hoagland, who alleges aesthetic harm that might arise from
completion of the ballroom. The district court’s standing
analysis rests on an embellished account of Hoagland’s
declaration, filling in claims of harm that she perhaps could
have made but did not. Looking at Hoagland’s actual
statements, she has failed to demonstrate an imminent and
particularized injury in fact. . . .

Her asserted aesthetic injury can be
understood in two ways—as a speculative injury to her
particular use of the White House, or as an imminent but
generalized injury from incidentally viewing the ballroom.
Either way, she lacks standing to sue.
If Hoagland’s aesthetic injury is to her specific use and
enjoyment of the White House, as the district court and
majority maintain, she fails to demonstrate her harm is imminent. In her declaration, she does not state any concrete
plans to use and enjoy President’s Park. Hoagland details her
academic credentials, past academic work, and historical
preservation efforts around Washington, D.C., but she nowhere
states that her work or her other activities specifically require
viewing the White House without the planned ballroom. See
Hoagland Decl. ¶¶ 4–8, 10–11. Hoagland instead claims that
she expects to “travel to the area around the White
House … about once a month” to “attend functions in
neighboring buildings.” Id. ¶ 12. Her assertions about future
use of President’s Park are tenuous at best and do not satisfy
the Trust’s burden at the preliminary injunction stage to make
a clear showing of imminent aesthetic injury to a member.
If Hoagland’s aesthetic injury is instead incidentally
viewing a ballroom she finds displeasing, her harm is imminent
but not particularized. Her declaration merely states that about
once a month she will walk by the White House on her way to
other buildings. Id. On these walks, she anticipates being
“impressed” with the White House but displeased with the
planned ballroom. Id. These allegations mirror those of the
petitioner in Environmental Defense Fund, who lacked
standing because she complained only about an “eyesore” that
she occasionally passed while traveling elsewhere. 2 F.4th at
968–69. Since Hoagland’s objection to the appearance of the
ballroom could be made by anyone planning to travel by the
White House, it constitutes nothing more than a generalized
grievance insufficient for Article III standing. . . .

By allowing standing for the Trust based only on
Hoagland’s declaration, the majority’s reasoning would permit
adjudication of any government action that a plaintiff finds
unsightly. But that contravenes the settled understanding that
“general emotional ‘harm,’ no matter how deeply felt, cannot
suffice for injury-in-fact for standing purposes.” Humane Soc.
of U.S. v. Babbitt, 46 F.3d 93, 98 (D.C. Cir. 1995). I would
decline the Trust’s “unprecedented and limitless” assertion of
standing, which would improperly convert the federal courts
into a “vehicle for the vindication of the value interests of
concerned bystanders.” Alliance, 144 S. Ct. at 1556, 1562
(cleaned up).
In sum, Hoagland falls short of making a clear showing of
standing for a preliminary injunction. And having failed to
demonstrate it likely has a member with standing, the Trust
lacks associational standing.

Judge Rao also contests the majority’s statutory holding, but I suspect the standing issues alone will be enough to engage the Supreme Court’s interest and (if I had to predict) reverse this decision. The bigger question is whether we will get a standing opinion from Justice Kavanaugh, who is perhaps becoming the Court’s leading expositor of standing principles, having authored Transunion, U.S. v. Texas, Alliance for Hippocratic Medicine, and Diamond Alternative.