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Kingman Park Civic Association v. Gray

United States District Court, District Circuit

July 29, 2013

VINCENT C. GRAY, Defendant.



Plaintiff Kingman Park Civic Association ("Kingman Park") filed suit against Vincent C. Gray in his official capacity as the Mayor of the District of Columbia, challenging aspects of the District's plan to construct a streetcar line in the Northeast quadrant of the District. Presently before the Court is the Plaintiff's [5] Amended Motion for Temporary Restraining Order, for Preliminary Injunction and for Waiver of Bond. Upon consideration of the pleadings, [1] the relevant legal authorities, and the record as a whole, the Court finds that the Plaintiff is not likely to succeed on the merits of its claims, the Plaintiff is not likely to suffer irreparable injury absent emergency relief, and the balance of the equities do not favor injunctive relief. With the public interest weighing against an injunction, on balance the Court finds emergency injunctive relief is not warranted in this case. Accordingly, the Plaintiff's motion is DENIED.


A. Factual Background

The District of Columbia intends to construct a "a surface fixed rail and streetcar public transportation network, " comprised of eight lines extending across 37 miles. Def.'s Ex. A (Nicholson Decl.) ¶ 4; see also DC's Transit Future Sys. Plan Final Report, April 2010.[2] The first leg of the system consists of 2.2 miles of track along H Street and Benning Road in the Northeast quadrant of the District, connecting Benning Road to Union Station (hereinafter the "H Street line"). Nicholson Decl. ¶ 7. Construction on the H Street line began in 2008 with new parking lanes, sidewalks, street lights, reconstructed roadways, streetcar tracks, and pole foundations. Nicholson Decl. ¶ 10. The streetcars "will be powered by quiet electric motors, and use a pole and pantograph to collect power from an electrified wire that is suspended approximately twenty feet over the lane on which it runs." Def.'s Opp'n at 4. At some point this month, the District will begin installing poles and overhead contact wires for the overhead cantilever system that will power the streetcars. Nicholson Decl. ¶ 12. Installation of the overhead cantilever system is expected to be completed in late September or early October of this year. Id.

The District of Columbia Department of Transportation ("DDOT") intends to build a "car barn" training center on the grounds of the Joel Elias Spingarn Senior High School (the "Spingarn campus"), located on the 2500 block of Benning Road, Northeast. Nicholson Decl. ¶ 14. Spingarn Senior High School was a public school prior to its closure in July 2013. Id. at ¶ 15. In November 2012, the District of Columbia Historic Preservation Review Board designated Spingarn High School as an historic landmark in the District of Columbia Inventory of Historic Sites. Am. Compl. ¶ 31. The car barn will be used to house streetcars while not in operation, and will also serve as "an operations base and maintenance facility" where workers will be trained to repair streetcars. Nicholson Decl. ¶ 16. In late June 2013, the District began constructing tracks and temporary facilities to enable system testing and certification. Id. at ¶ 20. Excavation of the planned car barn site was set to begin the week of July 15, 2013. Id. at ¶ 23. Five streetcars are scheduled to be delivered to the Spingarn campus in October 2013. Id. at ¶ 21. Construction of the permanent car barn structure will begin "this Fall, " and the District expects the car barn to be completed in the summer of 2014. Id. at ¶ 22.

The District plans to install three "traction power substations" to provide power along the H Street line. Nicholson Decl. ¶ 13; Compl., Ex. 3 (DC Streetcar Sys. Plan: H St/Benning Rd & Future Segments & Exts.) at 12; Pl.'s Reply, Ex. 3 (DDOT, Traction Power Supply Distribution). One of the substations is expected to be installed on the Spingarn campus. Nicholson Decl. ¶ 13; see also Compl., Ex. 3 at 12 (noting the substation location for the eastern end of the H Street line is near the intersection of Benning Road and 26th Street, Northeast).[3] The substation will only operate while the streetcars are in service. Def.'s Opp'n at 5 (citing Car Barn Training Ctr. Info. & FAQs, Spring 2013, at 3). The "underground infrastructure" for each of three substations is currently being installed. Nicholson Decl. ¶ 13. To date, none of the substations have been installed, but all three substations have been purchased and are being manufactured. Id. The substation to be installed on the Spingarn campus is scheduled to be delivered on October 22, 2013. Id.

B. Procedural History

The Plaintiff filed suit on June 28, 2013, and simultaneously filed a motion for a temporary restraining order ("TRO") and preliminary injunction. During a telephone conference call on the record with the parties on July 1, the parties agreed to a schedule for briefing the Plaintiff's requests for a TRO and preliminary injunction separately. Shortly thereafter, the Defendant informed the Court that excavation for the electrical substation was expected to begin the week of July 1. Def.'s Notice, ECF No. [4]. The Plaintiff subsequently withdrew its initial motion for emergency relief and filed the present Amended Motion. The Defendant elected to file an omnibus opposition to the Plaintiff's motion rather than respond separately to the Plaintiff's request for a TRO and for a preliminary injunction, and the Plaintiff filed a reply. In light of the new arguments raised in the Plaintiff's reply brief, the Defendant moved to strike portions of the reply, or in the alternative, for leave to file a sur-reply. Def.'s Mot. to Strike, ECF No. [11]. In this case, the Court found the interests of justice would be best served by deciding the Plaintiff's motion based on full briefing of all of the issues raised by the parties, rather than excluding particular arguments on procedural grounds. 7/23/13 Order, ECF No. [12]. Accordingly, the Court denied the Defendant's motion to strike, but granted the Defendant leave to file a sur-reply. Id. The Court also instructed the Defendant to supplement his sur-reply to address the new arguments in the Plaintiff's reply concerning its equal protection claims. Id. Having received the Defendant's sur-reply and supplement thereto, the Plaintiff's motion is now ripe for consideration by the Court.


A temporary restraining order or preliminary injunction is "an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 21 (2008). A plaintiff seeking a preliminary injunction or TRO must establish that (1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of preliminary relief, (3) the balance of the equities tips in its favor, and (4) an injunction would be in the public interest. Id. at 20. "The first component of the likelihood of success on the merits prong usually examines whether the plaintiffs have standing in a given case." Barton v. District of Columbia, 131 F.Supp.2d 236, 243 (D.D.C. 2001) (citing Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 101 (1998)).

Historically, these four factors have been evaluated on a "sliding scale" in this Circuit, such that a stronger showing on one factor could make up for a weaker showing on another. See Davenport v. Int'l Bhd. of Teamsters, 166 F.3d 356, 360-61 (D.C. Cir. 1999). Recently, the continued viability of that approach has been called into some doubt, as the United States Court of Appeals for the District of Columbia Circuit has suggested, without holding, that a likelihood of success on the merits is an independent, free-standing requirement for a preliminary injunction. See Sherley v. Sebelius, 644 F.3d 388, 392-93 (D.C. Cir. 2011); Davis v. Pension Benefit Guar. Corp., 571 F.3d 1288, 1292 (D.C. Cir. 2009). However, absent binding authority or clear guidance from the Court of Appeals, the Court considers the most prudent course to bypass this unresolved issue and proceed to explain why a preliminary injunction is not appropriate under the "sliding scale" framework. If a plaintiff cannot meet the less demanding "sliding scale" standard, then it cannot satisfy the more stringent standard alluded to by the Court of Appeals.


The Plaintiff seeks a temporary restraining order enjoining the installation of overhead wires for the overhead cantilever system and the excavation on the Spingarn campus. The Plaintiff also seeks a preliminary injunction enjoining those activities, as well as any construction for the car barn, substation, or other facilities on the Spingarn campus. The Defendant filed an omnibus opposition to the Plaintiff's request for both a TRO and a preliminary injunction, therefore the Court addresses the Plaintiff's requests together. The Court begins with the Defendant's contention that the Plaintiff lacks standing to bring this action, before turning to the four factor test for preliminary injunctive relief. Because preliminary injunctive relief is not warranted in this case, the Court does not reach the issue of whether Kingman Park should be required to post a bond.

A. Standing

As a threshold issue, the Defendant argues Kingman Park lacks standing to challenge the installation of the overhead wires or construction at Spingarn. The "irreducible constitutional minimum of standing contains three elements." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). First, the plaintiff must have suffered an "injury-in-fact, " that is, "an invasion of a legally protected interest' that is (i) concrete and particularized' rather than abstract or generalized, and (ii) actual or imminent' rather than remote, speculative, conjectural or hypothetical." In re Navy Chaplaincy, 534 F.3d 756, 759-60 (D.C. Cir. 2008) (quoting Lujan, 504 U.S. at 560). Second, the asserted injury must be "fairly traceable to the challenged action of the defendant." Lujan, 504 U.S. at 560 (citation omitted). Third, the plaintiff must demonstrate redressability: "[i]t must be likely that a favorable decision by the court would redress the plaintiff's injury." Id. at 561. It is axiomatic that the "party invoking federal jurisdiction bears the burden of establishing the[] elements" of constitutional standing. Id.

An association like Kingman Park may establish standing to sue in two ways. First, Kingman Park may sue on its own behalf if it "meet[s] the general standing requirements applied to individuals." Nat'l Taxpayers Union, Inc. v. United States, 68 F.3d 1428, 1433 (D.C. Cir. 1995). Second, Kingman Park may sue on behalf of its members if it demonstrates "associational standing." Sierra Club v. EPA, 292 F.3d 895, 898 (D.C. Cir. 2002). Associational standing requires the organization to show that

(1) at least one of its members would have standing to sue in his own right, (2) the interests the association seeks to protect are germane to its purpose, and (3) neither the claim asserted nor the relief requested requires that an individual member of the association participate in the lawsuit.

Id. Kingman Park argues that it has standing to sue the Defendant both on its own behalf and on behalf of its members.

1. Organizational Standing

To establish organizational standing, Kingman Park "must allege that discrete programmatic concerns are being directly and adversely affected by the challenged action." Nat'l Taxpayers Union, 68 F.3d at 1433. The Amended Complaint describes Kingman Park as "an unincorporated neighborhood civic association" which "seeks to preserve and protect the historic buildings, scenic views, integrity and environment within the District of Columbia, and specifically, the Kingman Park neighborhood." Am. Compl. ¶ 6. In September 2012, Kingman Park filed an application seeking to designate Spingarn as an historic landmark, and the District of Columbia Historic Preservation Review Board unanimously designated the property as an historic landmark in November 2012. Id. at ¶¶ 29, 32. The Defendant is now in the process of building a car barn, maintenance facility, and electrical substation on the grounds of an historic landmark Kingman Park specifically sought to protect, an injury that is directly traceable to the conduct of the Defendant, and would be redressable by an order from this Court barring construction on the site of Spingarn Senior High School. "Such concrete and demonstrable injury to the organization's activities-with the consequent drain on the organization's resources-constitutes far more than simply a setback to the organization's abstract social interests." Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982). On this record, Kingman Park is likely to succeed in showing it has organizational standing to challenge construction at Spingarn Senior High School.

However, the Court agrees with the Defendant that Kingman Park's allegations with respect to the overhead wires are likely insufficient to establish organizational standing. The allegations in the Amended Complaint relate only to Kingman Park's opposition to the construction at Spingarn. Moreover, the Plaintiff's briefs fail to offer any explanation as to how the overhead wires would concretely affect any of the organization's programmatic concerns. Thus, Kingman Park is not likely to succeed in demonstrating it has organizational standing to challenge the installation of overhead wires on H Street and Benning Road.

2. Associational Standing

In support of its reply brief, Kingman Park submitted declarations from James R. Wiggins, Charlie L. Murray, Jr., Joan Johnson, Allen Green, Dr. Jean Marie Miller, and Veronica E. Raglin. See generally Pl.'s Reply, Ex. 1. Curiously, only Joan Johnson, Allen Green, and Dr. Miller indicate that they are members of the Kingman Park Civic Association. Therefore, the Court looks only to Ms. Johnson's, Mr. Green's, and Dr. Miller's declarations to determine if Kingman Park is likely to succeed in demonstrating it has associational standing to challenge the Defendant's streetcar project.[4]

With respect to the overhead wires, the declarations submitted by Ms. Johnson, Mr. Green, and Dr. Miller each contain a single, identical paragraph, alleging that the wires "will adversely affect the clear and unobstructed views of (1) the nationally historic Langston Dwellings; (2) the historic Spingarn High School and its grounds; (3) the nationally historic Langston Golf Course; and (4) the Anacostia River." Johnson Decl. ¶ 2; Green Decl. ¶ 2; Miller Decl. ¶ 2. "[E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000). Neither Ms. Johnson, Mr. Green, nor Dr. Miller alleges that he or she derives any aesthetic or recreational value from the four areas listed. Nor do any of the declarants assert that any value he or she might derive would be adversely affected by the overhead wires.

The declarations further assert that "[t]he city admits that electromagnetic fields will be produced by the overhead wires, " but none of the declarants claim they will be harmed by electromagnetic fields ("EMFs") emitted by the wires, or that the EMFs will otherwise affect their use of the land over which the wires will be installed. See Johnson Decl. ¶ 7; Green Decl. ¶ 7; Miller Decl. ¶ 6; see also Second Raglin Decl. ¶ 7. The allegation that someone's aesthetic or recreational enjoyment would be adversely affected by the overhead wires is insufficient to establish "impending dangers for any particular member of the [Plaintiff's] association." Am. Chem. Council v. Dep't of Transp., 468 F.3d 810, 819 (D.C. Cir. 2006). For the same reason the allegation in each declaration that construction of the car barn "w[ill] block the historic site[] and degrade the appearance of the historic structure, " is insufficient to establish an injury-in-fact. Johnson Decl. ¶ 4; Green Decl. ¶ 4; Miller Decl. ¶ 4(a).[5]

In terms of the construction on the site of Spingarn Senior High School, Ms. Johnson indicates that "[w]hen construction commenced on the streetcar tracks the vibration and noise caused cracks in the walls and foundation of [her] property." Johnson Decl. ¶ 3. Yet Ms. Johnson does not allege (much less explain how) construction at Spingarn Senior High School is likely to damage her property on 20th Street, Northeast-several blocks away. Mr. Green makes an identical allegation regarding the harm caused by his property as a result of the construction of the streetcar tracks, but likewise fails to allege that construction at Spingarn Senior High School is likely to damage his property on 23rd Place, Northeast. Green Decl. ¶ 3. These allegations are insufficient because they "relate[] to past injur[ies] rather than imminent future injur[ies] that are sought to be enjoined." Summers v. Earth Island Inst., 555 U.S. 488, 495 (2009). Dr. Miller does not allege that her property was damaged by previous construction in connection with this project, nor does she allege any future damage is likely. The declarants' conclusory assertion that they are "certain that the construction and excavation will cause damage to the hundreds of homes and businesses, " ...

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