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U.S. District Court for the District of Columbia · 2026-09-18

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 1 of 50

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

JOYCE BEATTY,

Plaintiff,

v. Civil Action No. 25-4480 (CRC)

DONALD J. TRUMP, et al.,

Defendants.

DEFENDANTS’ CONSOLIDATED MEMORANDUM IN SUPPORT OF
THEIR RENEWED MOTION FOR PARTIAL SUMMARY JUDGMENT
AND MOTION TO DISSOLVE THE PRELIMINARY INJUNCTION

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 2 of 50

TABLE OF CONTENTS

BACKGROUND ............................................................................................................................ 2

A. Initial Development of the Recommendation to Close the Main Building
for Construction ...................................................................................................... 3

B. This Litigation......................................................................................................... 6

C. Subsequent Analysis of Renovation Options.......................................................... 8

a. The JLL comprehensive project development plan .................................... 9

b. The Delta Consulting Group project assessment and
recommendation........................................................................................ 11

D. The Board’s August 13, 2026 Decision ................................................................ 16

E. Subsequent Events and the Board’s September 15, 2026 Decision...................... 20

LEGAL STANDARDS ................................................................................................................ 22

A. Motion for Summary Judgment ............................................................................ 22

B. Dissolving a Preliminary Injunction ..................................................................... 22

ARGUMENT................................................................................................................................ 23

I. Summary Judgment Is Warranted on Plaintiff’s Outstanding Claims. ................................. 23

A. The Board’s renewed closure vote comports fully with its statutory duties. ........ 24

B. The Board’s renewed decision to close comports fully with its fiduciary
duties. .................................................................................................................... 27

C. No genuine disputes of material fact preclude summary judgment...................... 33

II. The Preliminary Injunction Should Be Dissolved. ............................................................... 38

A. Defendants have satisfied their burden to show that significantly changed
factual conditions merit dissolution. ..................................................................... 38

B. Continued enforcement of the preliminary injunction would be detrimental
to the public interest, and the equities support dissolution. .................................. 40

CONCLUSION............................................................................................................................. 44

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TABLE OF AUTHORITIES

Cases

Am. Council of the Blind v. Mnuchin,
878 F.3d 360 (D.C. Cir. 2017) ............................................................................................ 22, 23

*Beatty v. Trump,
834 F. Supp. 3d 41 (D.D.C. 2026) ..................................................................................... passim

Cheney v. U.S. Dist. Ct. for D.C.,
542 U.S. 367 (2004) .................................................................................................................. 27

Day v. Apoliona,
616 F.3d 918 (9th Cir. 2010) .................................................................................................... 36

Dellinger v. Bessent,
766 F. Supp. 3d 57 (D.D.C. 2025) ............................................................................................ 43

*Doe 2 v. Shanahan,
755 F. App’x 19 (D.C. Cir. 2019) ................................................................................. 22, 38, 40

Dunlap v. Presidential Advisory Comm’n on Election Integrity,
944 F.3d 945 (D.C. Cir. 2019) .................................................................................................. 27

Horne v. Flores,
557 U.S. 433 (2009) .................................................................................................................. 38

In re Am. Fed’n of Gov’t Emps., AFL-CIO,
837 F.2d 503 (D.C. Cir. 1988) .................................................................................................. 43

In re Curlew Valley Assocs.,
14 B.R. 506 (Bankr. D. Utah 1981) .......................................................................................... 37

In re U.S. Bank Nat’l Ass’n,
27 N.Y.S.3d 797 (Sup. Ct. 2015) .............................................................................................. 35

Leedom v. Kyne,
358 U.S. 184 (1958) .................................................................................................................. 27

Nken v. Holder,
556 U.S. 418 (2009) .................................................................................................................. 40

Nuclear Regul. Comm’n v. Texas,
605 U.S. 665 (2025) .................................................................................................................. 27

Nyunt v. Chairman, Broad. Bd. of Governors,
589 F.3d 445 (D.C. Cir. 2009) .................................................................................................. 27

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 4 of 50

*Olds v. Rollins Coll.,
173 F.2d 639 (D.C. Cir. 1949) .................................................................................................. 28

Pepper v. United States,
562 U.S. 476 (2011) .................................................................................................................. 24

Petties ex rel. Martin v. District of Columbia,
662 F.3d 564 (D.C. Cir. 2011) .................................................................................................. 23

Salazar v. Buono,
559 U.S. 700 (2010) .................................................................................................................. 44

*Shelton v. King,
229 U.S. 90 (1913) .............................................................................................................. 28, 35

Talavera v. Shah,
638 F.3d 303 (D.C. Cir. 2011) .................................................................................................. 22

Talbott v. United States,
775 F. Supp. 3d 445 (D.D.C. 2025) .............................................................................. 22, 23, 40

Texas v. United States,
523 U.S. 296 (1998) .................................................................................................................. 34

Statutes

*20 U.S.C. § 76j(a)(1)(G) ....................................................................................................... 24, 36

*20 U.S.C. § 76l(b) ................................................................................................................. 27, 28

*20 U.S.C. § 76h(a)(1).................................................................................................................. 24

An Act to Provide for Reconciliation,
Pub. L. No. 119-21, § 60025(a), 139 Stat. 72, 157 (2025) ................................................... 4, 44

Administrative & Executive Orders

Fed. R. Civ. P. 56(a) ..................................................................................................................... 22

Fed. R. Civ. P. 56(b) ..................................................................................................................... 22

Fed. R. Civ. P. 60(b)(5)................................................................................................................. 22

Other Authorities

*Amy Morris Hess, George Gleason Bogert & George Taylor Bogert, Bogert’s The
Law of Trusts and Trustees (2025 ed.) ............................................................................... 28, 29

Restatement (First) of Trusts (1935) ............................................................................................. 28

iii

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*Restatement (Third) of Trusts (2007) .................................................................................. passim

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 6 of 50

The Kennedy Center has become dangerously dilapidated and decrepit. Indeed, just two

weeks ago, a large piece of the ceiling collapsed into the Center. Historic failures to invest

appropriately in the Center’s infrastructure have transformed the building into a structurally

unsound, fundamentally unsafe facility in desperate need of intervention. Over the past year, the

Center’s management and its Board have developed a comprehensive restoration plan to return the

Kennedy Center to greatness. This plan includes funds sought by the Trump Administration and

appropriated by Congress. Yet Plaintiff sued and challenged the initial Board vote to renovate and

restore the Center. And in May 2026, the Court preliminarily enjoined Defendants from

effectuating the Board’s March 2026 decision to temporarily close the Center’s main building to

allow for safe and effective renovations. Mem. Op. at 88, ECF No. 50.

Since that day, the Board has been given information necessary to make a sound decision

on how to safely, efficiently, and most appropriately address the Center’s dramatic structural

decline. On August 13, after receiving and considering a detailed written project plan and the

recommendation of two sets of consultants, the Board again voted to temporarily close the Center

for two years to complete the needed repairs. As part of its resolution to do so, the Board

memorialized its commitment to continue supporting artistic and educational programming, both

on and off campus, and to maintaining public access to the memorial for President Kennedy during

renovations. And on September 15, after receiving an additional comprehensive and detailed report

recommending temporary closure and information concerning imminent collapse of the Center’s

roof, the Board voted once more to temporarily close the Center for two years to complete repairs.

Defendants have now twice “approve[d]” a “closure consistent with the Court’s

Memorandum Opinion,” Order on Mot. for Prelim. Inj. at 1, ECF No. 48, and have thus satisfied

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 7 of 50

their fiduciary duties. Defendants therefore are entitled to summary judgment on Plaintiff’s

remaining claims (i.e., those that are related to the closure) in this litigation.

The Court should likewise dissolve the preliminary injunction that it entered in May. The

Board’s renewed votes fundamentally change the calculus underlying the Court’s May

memorandum opinion. Indeed, Defendants undertook the renewed votes in accordance with that

opinion and have satisfied their duties under the law. And recent events—the completion of a

soffit-panel engineering study and the safety hazard created by the collapse of ceiling material

following significant stormwater intrusion—underscore that further delay will only harm the

Center and the public.

Continued enforcement of the preliminary injunction will also continue to harm the public

interest by limiting the Center’s ability to fulfill its statutory duties and to perpetuate the substantial

uncertainty that has surrounded the Center’s future since the onset of this litigation. Under the

status quo established by the Court’s preliminary injunction, it cannot adequately perform the

necessary renovations, which will not be complete in time or within budget without a full closure

of the Center. Further, any limitations on a full closure during renovation present significant safety

concerns for the Center’s employees, artists, and members of the public. The Center’s Board has

decided that the prudent path forward to address the Center’s severe structural deficiencies and to

give the institution the renovations it needs to thrive long into the future is to temporarily close its

main building to conduct substantial renovations. This Court should lift the last impediment in

place preventing that outcome.

BACKGROUND

Much of the relevant factual background to this litigation appears in the Court’s May 2026

Memorandum Opinion. See ECF No. 50 (also available at Beatty v. Trump, 834 F. Supp. 3d 41,

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 8 of 50

53–64 (D.D.C. 2026), appeal filed, No. 26-5224 (D.C. Cir. June 12, 2026)). The instant motion

recounts only those background facts relevant to the claims remaining at issue in this litigation,

related to the Board’s decision to fully close the Center’s main building for repairs for a two-year

period. Specifically, Defendants first address the origins of their plan to close the building prior to

this litigation, then address the relevant history of this litigation through the Court’s issuance of its

preliminary injunction in May 2026. Defendants conclude with the developments subsequent to

the preliminary injunction, up through and including the Board’s August 13, 2026 vote to close

the building and ratification vote, on September 15, 2026, to the same effect.

A. Initial Development of the Recommendation to Close the Main Building for
Construction

The genesis for Defendants’ plan to close the Center’s main building to effectuate

necessary renovation and repairs was in the fall of 2025. At that time, the Center had already

determined that a variety of repairs to the building were necessary. For example, consultants

concluded in 2021 that the Center’s vertical plumbing risers reached a state of systemic failure and

the Center’s steel channels had corroded. See Second Decl. of Charles Matthew Floca ¶ 9, ECF

No. 29-3. In 2022, consultants concluded that the Center’s boilers and chillers had reached the end

of their engineered service life. Id. And in 2024, consultants identified severe water intrusion at

exterior column bases and main electrical vaults of the Center. Id. Further, consultants concluded

in 2022 after a failure of certain soffit panels on the building’s exterior that deterioration had

resulted in the risk that the panels would become a falling hazard. Ex. Z to Kristofcak Decl. at 3,

ECF No. 29-17. Faced with these reports when he joined the Center as Vice President of Facilities

in early 2024, Matthew Floca, now the Center’s Executive Director and Chief Operating Officer,

began a comprehensive review of the Center’s infrastructure needs. See ECF No. 29-3 ¶¶ 6–7.

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 9 of 50

Consistent with the needs identified by the Center’s consultants, Congress, in July 2025,

recognized the need for repairs and renovation to the Center and appropriated approximately $257

million to help the Center conduct necessary renovation and restoration work. See An Act to

Provide for Reconciliation, Pub. L. No. 119-21, § 60025(a), 139 Stat. 72, 157 (2025); see also ECF

No. 50 at 13. Following that appropriation, the Board received updates from management—

including Mr. Floca—on what construction at the Center might look like as a result of that new

funding. See ECF No. 50 at 13–15. As part of this process, Mr. Floca began to consider how best

the Center might put the resources appropriated by Congress to use in an effective and efficient

manner. See ECF No. 29-3 ¶ 6. To that end, during the fall and winter of 2025 and into 2026, Mr.

Floca “realized that closure was necessary after ‘an extensive analysis of expert evidence and

internal operational data,’ ” including the Center’s comprehensive building plans, external

consultant reports, and information gathered from certain staff at the Center. ECF No. 50 at 15–16

(quoting ECF No. 29-3 ¶¶ 7, 9, 11). As Mr. Floca testified, he “ ‘analyze[d] . . . different options’

with a ‘team,’ ‘constantly . . . trying to figure out contracting mechanisms and solutions to partially

operat[e] the building,’ but ultimately concluded that it would be ‘irresponsible to do anything

other than holistic fixes.’ ” Id. at 16 (alterations in original) (quoting D.C. Pres. League Hr’g Tr.

at 99:8–14, ECF No. 45-1).

In January 2026, Mr. Floca spoke with President Trump several times and suggested over

the course of those engagements that “a singular, concentrated 24-month closure [would be] the

most cost-effective and efficient path for addressing the Center’s acute infrastructure needs.” Id.

(alteration in original) (quoting ECF No. 29-3 ¶ 7). In Mr. Floca’s view, such a closure would help

address “the facility’s critical infrastructure failures while eliminating the hidden costs and safety

risks inherent in a multi-year, phased renovation.” Id. (quoting ECF No. 29-3 ¶ 7). On February 1,

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 10 of 50

2026, President Trump proposed publicly on social media that the Center close for two years to

conduct renovation. See id. at 11 (citing ECF No. 13-12 at 2–3). Following that date, Mr. Floca

developed a series of “talking points” to support the closure proposal. Id. at 18. He created a “high-

level budget” for the project that outlined certain categories of work during the closure. Id. And

he presented that budget—along with his recommendation—to the Center’s Building and Grounds

Committee on March 2, 2026. See id. at 19.

On March 16, 2026, the Board discussed Mr. Floca’s recommendation to close the Center’s

main building and took a vote to effectuate that recommendation. See id. at 20–21. Mr. Floca

presented proposed capital improvements. He started by reviewing the significant water intrusion

at the Center, including a leak in an expansion joint to a service tunnel running the entire length of

the Center, causing damage to loading docks located under the Center’s Hall of States and

intruding into the Center’s electrical vaults. See ECF No. 34-5 at 8. Mr. Floca then presented

information about the Center’s River Plaza, showing the Board that steel on the top of girders

supporting the Plaza had delaminated and caused “significant structural failures.” Id. And Mr.

Floca presented information about the Center’s roof soffits, which have “buckled” and require

testing and repair. Id. Mr. Floca further noted that there are “hundreds of points of failure across

the parking garage,” that concrete steel needs waterproofing, that stage rigging is at the end of its

life, that elevators have reached the end of their service lives, and that water filtration from the

Potomac River presents significant issues for the Center’s systems. See id. at 9. Following a

discussion among Board members, including participation from Plaintiff and questions from other

Board members about whether other structural issues had been identified and what kinds of

liability such issues might create, see id. at 9–10, the Board voted to “conduct an orderly wind-

down of programming activities through the Spring of 2026 and close [the Center’s] doors entirely

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 11 of 50

effective July 6, 2026, for such time as is required to complete the repair and restoration” funded

by the congressional appropriation. Id. at 10.

B. This Litigation

Plaintiff Joyce Beatty, a member of the House of Representatives from Ohio, is an ex officio

trustee on the Center’s Board by virtue of her position in Congress. First Am. Compl. ¶ 13, ECF

No. 12; see also ECF No. 50 at 8. In December 2025, Ms. Beatty filed this litigation, bringing

claims unrelated to the issues in this motion. See Compl., ECF No. 1. On March 6, 2026, in advance

of the Board meeting in which the Board first voted to close the Center’s main building, Ms. Beatty

amended her Complaint to challenge the (then) proposed closure. See, e.g., First Am. Compl. ¶¶ 5–

6. Ms. Beatty also moved for a preliminary injunction to, among other things, halt the proposed

closure. See ECF No. 13 at 3. Defendants moved for summary judgment on Ms. Beatty’s claims.

See Defs.’ Mot. for Summ. J., ECF No. 34.

In addition to extensive briefing and oral argument regarding these motions in the instant

case, the Court heard oral testimony from Mr. Floca at a hearing in a related case in which Ms.

Beatty’s counsel participated. See ECF No. 50 at 23. At the hearing, Mr. Floca testified “credibly”

about the scope of planned construction at the Center. See ECF No. 50 at 68; see generally ECF

No. 45-1. And that testimony, along with documents prepared for the Board’s consideration prior

to its March vote, established a “more modest” yet “still substantial” scope of planned work than

the “demolition” Plaintiff predicted in her pleadings. Id. at 68–69; see also ECF No. 12 ¶ 5.

On May 29, 2026, the Court granted Ms. Beatty’s motion for preliminary injunction as to

the closure of the Center. In reaching this conclusion, the Court found that years of comprehensive

structural studies at the Center have pointed to one conclusion: that the Center needs “major capital

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 12 of 50

repairs.” 1 ECF No. 50 at 12. Acute structural needs include “fire alarm system replacement,

overhang roof work, [] waterproofing,” the replacement of certain mechanical systems, and other

significant repair work. Id. at 12 (collecting record sources).

As the Court found, “[a]ccording to Mr. Floca’s testimony in [the related case] and the

documentary record in this case, the renovation project will generally entail mechanical overhauls

and structural repairs.” Id. at 68. “More specific plans include systematic waterproofing;

fireproofing; the replacement of boilers, chillers, and pipes; restroom and elevator modernization;

employee office renovation; various technical restorations of performance spaces; carpeting and

seating replacement; and site and landscaping improvements.” Id. Work will address “demolition

and structural steel reconfiguration” in certain spaces, while “stage lifts and rigging systems” will

be replaced and “stage floors” will be demolished. Id. at 69 (quoting Third Decl. of Charles

Matthew Floca ¶¶ 7, 10, ECF No. 34-4). To address water intrusion, certain spaces immediately

outside the Center will be “excavat[ed]” and “t[orn] up.” Id. (quoting ECF No. 34-5 at 8).

The Court concluded that the Center “is poised to undergo a set of serious renovations,

which may involve demolition and reconfiguration of component parts of the building.” ECF No.

50 at 69. But it was “not persuaded that the building will be razed to the ground or stripped to its

studs and reconstructed.” Id. And, although it preliminarily enjoined the Board against effectuating

its planned full closure for renovation, the Court noted that, under the law, the Board might

“reconsider[] the closure issue” upon a more complete record. Id. at 88.

1 That need has only grown over time. For example, as explained below, since the Board’s

August 13 meeting, further soffit structural and waterproofing tests conducted by Walter P Moore
have indicated that the extent of repair needed to the main building’s roof and soffits is greater
than previously known. See Sep. 16 Floca Decl. ¶¶ 4–6, ECF No. 86-1. And in the first week of
September 2026 a section of the Grand Foyer ceiling of the main building collapsed after severe
storms in Washington, D.C. See id. ¶ 4.
7

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Under the preliminary-injunction standard, the Court concluded that it was “not persuaded

that the closure is categorically unwarranted or impermissible under the U.S. Code” and noted that

the Board “is not necessarily barred from closing the Kennedy Center while renovations take

place.” ECF No. 50 at 88. But the Court nonetheless issued a preliminary injunction against the

March 16 closure decision, reasoning that the Board had failed to satisfy its fiduciary duties

because it failed to consider its statutory obligations in making that decision, failed to gather and

consider sufficient information about the impacts of closure on the Center’s operations, and had

no meaningful opportunity to consider closure before consummating its March 16 vote. See id. at

75–83. Under the preliminary injunction, Defendants “may not take steps to further effectuate the

March 16 [closure] decision for the pendency of this action, or until the Board approves any closure

consistent with the Court’s Memorandum Opinion, and the Court issues a further Order dissolving

or modifying [the] preliminary injunction.” ECF No. 48 at 1.

C. Subsequent Analysis of Renovation Options

Following the Court’s injunction, Defendants commissioned further analyses in order to

determine the best manner to conduct the needed renovations and provide the Board with the tools

to make a decision about how to proceed with the renovations that would satisfy its obligations, as

set forth in the Court’s opinion. Between the issuance of the injunction and the Board’s August

13, 2026, vote to close the Center’s main building for repair, the Center’s management developed

two sources of information, each of which was presented to the Board before its August 13 vote.

First, the Center’s management received from JLL, a construction management firm with

significant and longstanding large-scale construction experience, a comprehensive project

overview for the proposed renovation. Second, the Center’s management retained Darin L.

Buchalter of the Delta Consulting Group to provide expert consultation and analysis regarding

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potential alternative approaches for conducting the renovation program contemplated for the

Center.

a. The JLL comprehensive project development plan

During the pendency of this litigation, the Center’s management hired JLL, a construction

management firm with significant and longstanding large-scale construction experience, to

develop a detailed and comprehensive project overview for the proposed renovations. 2 See JLL

Comprehensive Project Development Plan at 2, ECF No. 65-1. This project overview was

distributed to trustees prior to the August 13 meeting at which the Board again voted to undertake

a full closure for construction. See generally id.; see also Sep. 18 Floca Decl. ¶ 4.

JLL’s approximately 160-page report provides a comprehensive overview of the project,

including a comparison of the construction costs of a two-year closure of the building and an

alternative four-year project with phased, partial closures of the building, and a detailed scope of

the work required. The report set forth costs, timing, and an assessment of the impacts that the

construction will have on the Center’s operations, including the budget for each project line item

contemplated and an assessment of the feasibility of undertaking significant repair and restoration

work within the nation’s premier performing-arts venue. JLL concluded that the Center “requires

a comprehensive renovation project to address critical structural deficiencies, replace aging

building systems that have reached the end of their operational life, and restore interiors that should

represent the venue’s cultural significance.” ECF No. 65-1 at 2. In JLL’s judgment, the “scale of

necessary work—including structural repairs, complete mechanical system replacement, life

safety upgrades, and envelope and facade preservation—cannot be executed safely or cost-

2 JLL identified a team of qualified firms and experts to undertake discrete portions of the

project, including an architect of record, a preservation architect, a historic preservation consultant,
a structural engineer, a civil engineer, a landscape architect, and an acoustical consultant. See ECF
No. 65-1 at 17–19.
9

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effectively while maintaining public operations.” Id. And JLL found that “[a]ttempting phased

construction would extend the timeline significantly, increase costs, and compromise both patron

experience and contractor safety.” Id.

In developing the comprehensive project plan, JLL set out three distinct phases that would

guide its management of the renovation. First, JLL proposed to undertake historic preservation and

planning activities, including by securing “preservation approvals,” “validat[ing] mechanical and

electrical system strategies,” and undertaking prework aimed at ensuring that the Center is

prepared for significant construction activities. Id. at 4. Second, it would then undertake

assessments and repairs of major systems and equipment at the Center, including “mechanical

systems, electrical distribution, emergency power, life safety systems, plumbing systems, vertical

transportation, and building automation controls.” Id. And, third, it would manage the renovation

of “interior spaces,” including “the three major performance venues and the four small venues,

Hall of States, Hall of Nations, and Grand Foyer.” Id.

JLL’s report includes detailed architectural diagrams of site logistics and the planned work.

See., e.g., id. at 22 (site logistics diagrams); id at 27 (proposed work on the Center’s roof level),

id. at 28 (proposed work at the Center’s penthouse level); id. at 29–30 (work on the Center’s terrace

level); id. at 31 (work in the Center’s main performance venues); id. at 32–33 (proposed scope of

work on the Center’s plaza); id. at 34–36 (planned work in the parking garages); id. at 37–40

(contemplated work on the Center’s façade).

For each project line item contemplated under the renovation—including items as diverse

as elevator modernization, see id. at 41–42; escalator capital repair, see id. at 42–44; fire protection

system upgrades, see id. at 45–46; hazardous materials abatement, see id. at 46; employee office

renovations, see id. at 67–71; and the Opera House restoration, see id. at 76–79—the report also

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details the scope of work to be performed, see id. at 41–87. As an illustrative example, JLL broke

out the $20 million set aside for electrical system upgrades into the constituent sub-projects to be

completed over the course of the construction, including updates to the main electrical distribution;

updates to the grounding system; updates to exterior and site lighting; updates to emergency power

systems—and outlined the major components of each of these sub-projects. See id. at 54–56.

JLL laid out a budget and delivery strategy, breaking out the specific projects that depended

on the Center’s ability to close its main building to the public. See id. at 88–89. And it laid out

certain risks to the project—including risks that might arise from the Center’s project schedule, its

budget, unforeseen conditions in the Center’s main building, the need to expand the project’s scope

upon any determination that the extent of disrepair is greater than previously believed, and

regulatory considerations—including from this Court’s oversight. See id. at 90–91. JLL’s report

detailed risk-mitigation strategies, like undertaking consolidated materials and site assessments

where possible, hiring specialized consultants, and developing a comprehensive logistics plan. See

id. at 91–93. And it further outlined strategies for quality assurance and control, see id. at 93–97;

properly managing worker safety, see id. at 98–99; and for communicating updates to the Board

of Trustees and Center leadership, see id. at 100. JLL attached to its report as appendices a chart

showing the projected integrated project timeline, see id. at 102–14, and a budget allocation matrix

providing budget breakouts and project descriptions for each individual budget line item, see id.

at 115–63.

b. The Delta Consulting Group project assessment and recommendation

While development of the JLL project overview was ongoing, and in response to the

Court’s May 29 preliminary-injunction order, the Center’s management retained Darin L.

Buchalter of the Delta Consulting Group to provide “expert consultation and analysis” in

connection with “alternative approaches for conducting the repair and renovation program”
11

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contemplated for the Center. Construction Program Assessment Report ¶ 1, Ex. A. 3 Mr. Buchalter

and Delta prepared their report (“the Delta report”) “independent[ly],” with “no prior involvement

with the consideration of the Center’s plans for repair,” and “began with no preconceived notion

of the necessity, proper approach for the repair and renovation of the Main Building, or the impact,

if any, on mission-based programming.” Id. ¶ 47.

While developing this report, Mr. Buchalter briefed two Board of Trustees subcommittees

in early August on his initial findings. See id. ¶ 34. And he presented his “comparative

assessment,” which was based on the analysis later encapsulated within the final Delta Consulting

Group report at Exhibit A to this motion, to the Board at its August 13 meeting to vote on closure.

See id.; see also ECF No. 68-3 at 5–7.

Mr. Buchalter and other employees at his firm who contributed to the Delta report have

significant experience in providing advisory services across multiple industries, including real

estate, construction, and financial services. See Ex. A ¶¶ 11–21, 29. Mr. Buchalter also has

experience in the nonprofit sector, having served on the board of directors of the Friends of the

San Francisco Library while that entity was leading the “fundraising and execution of the

renovation of the historically significant Andrew Carnegie library branches” while maintaining the

library’s “level of system-wide programming.” Id. ¶ 22. And the personnel who helped conduct

the analysis underpinning the Delta report have a wide array of experience, including in managing

construction for complex capital programs, conducting project assessments for other federal

entities, and undertaking a “time-critical” theater redevelopment in London. Id. ¶ 29.

3 Exhibit A contains the full report developed by Delta Consulting and the report’s
appendices, save for appendices that already appear in the record or that contain sensitive
architectural drawings. See Sep. 18 Floca Decl. ¶ 5. Citations to Exhibit A refer to the report itself;
pincites are to the numbered paragraphs in the report. Citations to any appendix attached to the
report appear as “App. X to Ex. A”; pincites refer to each appendix’s numbered pages.
12

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 18 of 50

To develop his recommendation and resulting report, Mr. Buchalter and his team relied on

a wide array of documents provided to Delta by the Center, including the 2021 Comprehensive

Building Plan prepared by DLR Group and the 2026 Comprehensive Project Development Plan,

discussed above, prepared by JLL. See id. ¶ 5. Delta further relied upon other relevant records, like

assessments and capital plans for the Center’s main building; audited financial statements; Finance

Committee materials; financial information provided by the Center’s management; programming,

operations, facilities, engineering, construction, and institutional information provided by the

Center’s management; and this Court’s preliminary injunction opinion, to develop its

recommendation and report. See id. ¶ 27. And Delta consultants further conducted independent

research on pertinent construction matters; toured the Center with onsite operations and project-

management personnel; and interviewed the Center’s finance, programming, and operations

personnel over a period of several weeks. See id. ¶ 5.

In Delta’s view, feasible operational models for the Center to adopt while undertaking the

authorized renovation reduced down to two approaches: either (1) to “Operate & Partially

Renovate,” which would entail maintaining public access to the main building of the Center,

continuing arts programming throughout the Center, and conducting sequential closures of specific

spaces in the main building to complete the proposed construction; or (2) to “Partially Close and

Renovate,” which would entail closing the main building to the public for the duration of the

construction while maintaining programming, education, public engagement, and memorial

functions at the REACH building and supporting artistic performances at off-campus venues. 4 Id.

4 Soon after the Court’s preliminary-injunction order, Mr. Floca suggested that the Center
might consider a “variation” on three potential options for the Center’s operational model moving
forward. See June 19 Decl. of Charles Matthew Floca ¶ 7, ECF No. 60-1. But Delta’s independent
review—which it conducted with “no prior involvement with the consideration of the Center’s
plans for repair” and “began with no preconceived notion” for what course of action might be
13

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¶ 3. Mr. Buchalter and his firm conducted an in-depth and independent assessment of the merits

of the proposed alternatives and recommended to the Board that it close the main building and

“conduct repair and renovation” with the appropriated congressional funding “over a two-year

period.” Id. ¶ 85; see also id. ¶¶ 47–52.

Based on his firm’s analysis, Mr. Buchalter concluded that a closure of the main building

of the Center over a two-year period would present significant advantages over the primary

alternative. See id. ¶¶ 85–86. Keeping the main building open while the Center conducted

sequential closures for the contemplated renovation “would result in a dramatically underfunded

Construction Program, a material operating deficit, and meaningful concerns for public safety.”

Id. ¶ 86. Under the extended partial-closure scenario, construction would—by necessity—take

longer to complete than under a full main-building closure. See id. ¶ 88 (assuming a four-year

period to conduct work in a partially operational main building). Over that extended period, Mr.

Buchalter projected that costs for construction would roughly double the current budget of $257

million, due in part to increased complexity resulting from the need to protect patron safety and

implement complex partial-closure logistics. See id. ¶ 89; see also id. ¶¶ 127–37 (noting that the

required repairs are “invasive” and “cannot be performed without disturbing the spaces and

systems necessary to operate” the main building, that phased renovation is “technically feasible”

but will require significant logistical “controls” and would create a “substantial impact” on the

project’s cost and schedule). And, due to that budget shortfall, “most of the structural work” would

be unfunded. Id. ¶ 89; see also id. ¶¶ 142–43. Moreover, extending renovation over four years

would severely expand the Center’s operating losses, to the tune of roughly $80 million per year

prudent, Ex. A ¶ 47—led the consultants to conclude that certain proposed models did not “differ
meaningfully” and that only two were feasible, id. ¶ 3.
14

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of the project, even assuming that arts programming would be conducted in the under-construction

main building. See id. ¶ 90; see also id. ¶¶ 202–13 (outlining the Center’s “existing operating

deficit” and explaining that the Center’s inability to reduce programming costs during a partial

closure, paired with the extended duration of any impact on revenues resulting from impairments

to the performing-arts experience, would lead to a $78 million annual deficit). 5

Closing the main building, Mr. Buchalter found, would allow for the concentration of

construction activities on a tighter timetable and reduce the safety and logistical costs associated

with maintaining a partially open performing-arts space. See id. ¶¶ 92–93. And, moreover,

temporary closure would enable the Center to shift programming to off-campus venues, allowing

the Center to scale down its operating costs to the level required to conduct a focused set of on-

campus programming at the REACH building and reducing the cumulative negative impact that

the renovation will have on the Center’s financial outlook. See id. ¶¶ 93–94; see also id. ¶¶ 214–

25 (estimating under the main-building-closure scenario how much revenue the Center would be

able to generate, how much the Center would be able to reduce operating costs, and how such

savings compare to the scenario in which the main building remains partially open for

performances).

Mr. Buchalter consolidated his conclusions into a slide deck, see Delta Construction

Program Assessment, ECF No. 65-2, that he presented to the Board at its August 13 meeting, see

5 Delta’s financial analysis was supported by its comparative cost assessment, see
Comparative Cost Assessment Workbook, App. T to Ex. A; a quarterly construction cost report,
see 2026 Quarterly Construction Cost Report, App. U to Ex. A; the Center’s 2023 and 2024 audited
consolidated financial statements, see Consolidated Financial Statements, App. V to Ex. A; and an
unaudited consolidated statement of activities for fiscal year 2025, see Unaudited Consolidated
Statement of Activities for FY25, App. W to Ex. A. Delta factored each source of data into its
construction and operations financial projections. See Ex. A ¶¶ 26–27, 43–44, 204–07, 209.
15

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 21 of 50

Ex. A ¶ 34; see also Presentation to the Board of Trustees, App. H to Ex. A. He finalized his report

on August 20, 2026. See Ex. A at 68.

D. The Board’s August 13, 2026 Decision

The Board met on August 13, 2026 to consider the potential paths forward for renovation

of the Center. See Preliminary August 13 Board Minutes at 1, ECF No. 68-3. Two days prior to

the meeting, trustees received a packet of information that included the slide deck presentation that

Mr. Buchalter had developed for the Board’s consideration and the entire JLL comprehensive

development plan. See Sep. 18 Floca Decl. ¶ 4.

At the meeting, the Board’s discussion of options for proceeding with the renovation

authorized by congressional appropriation began with a trustee reporting that the Board’s

Buildings and Grounds Committee had held “several meetings reviewing the options to be

presented” and had “spent considerable time reviewing the materials from JLL and having

discussions with [Mr.] Buchalter.” Id. at 5–6. Secretary Lutnick then introduced Mr. Buchalter,

explaining that Mr. Buchalter would present an executive summary of his report’s findings while

the report was being finalized. See id. at 6. Secretary Lutnick further noted that, under both

proposals, the Center “as a whole” would not close. Id. Programming would remain and support

for artistic enterprises would continue off campus. See id.

Mr. Buchalter began his presentation by noting his and his firm’s experience in providing

advisory services to a wide array of clients, including to other federal entities conducting similar

kinds of construction projects. See id. at 6. He explained that his firm had been engaged to

“independently assess the construction program and identify the most effective path forward for

the repair and renovation of the Center while balancing operations and mission.” Id. And he

presented the two options for renovation that his firm had developed and that he supported in his

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 22 of 50

final report: either to (1) operate and partially renovate or (2) close the main building and renovate

comprehensively. See id. at 7.

Mr. Buchalter explained that under the first proposal, the planned construction would

“[c]ost[] more and take[] longer.” Id. Delta projected that cost increases would mean that the $257

million appropriation would cover only roughly half of the necessary work. See id. Delta pointed

to recent revenue decline at the Center as evidence of “uncertainty and friction,” a decline that Mr.

Buchalter expected would continue over the course of the entire—longer—project timeframe. See

id. And, because of an inability to reduce operating expenses, the Center would maintain a

“meaningful” operating deficit over the four-year period of the construction. Id.

Under the proposal to close the Center’s main building, the $257 million appropriation

would cover “most of the program.” Id. The remaining $30 million shortfall “could be addressed

through value engineering, modest fundraising, or scope adjustment.” Id. And, crucially, in Mr.

Buchalter’s view, completing the project over a two-year period would produce a “dramatically

different exposure to cost escalation and a different level of safety” while enabling the Center to

“curtail[]” operating costs and thus reduce its operating deficit. Id. Under this proposal, Mr.

Buchalter explained, programming would be maintained at the REACH, thereby helping fulfill the

Center’s statutory and “cultural” mandate. Id. He concluded by recommending that the Center

close the main building to renovate, a path that presented the “most efficient, economical, and

safest way to maximize permanent capital improvements while maintaining mission continuity

and the memorial experience.” Id.

The Board began discussion. Secretary Lutnick first asked Mr. Buchalter about the cost

comparison and to confirm that the four-year phased approach would result in a doubled cost

figure. See id. at 8. Mr. Buchalter confirmed that fact. See id. Plaintiff then stated—incorrectly—

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 23 of 50

that she had received only two PowerPoint slides in her packet of materials and noted that she felt

the volume of material was too great to digest within a one-hour meeting. See id. Center

management confirmed that all trustees had received nearly two hundred pages of materials prior

to the meeting; Secretary Lutnick confirmed that the packet included the full JLL report (described

supra Section A.C.a) and a summary of the Delta report, which consisted of the slides that Mr.

Buchalter had prepared and presented. See id. Plaintiff acknowledged that she had, in fact, received

the JLL materials. See id. Secretary Lutnick confirmed that the REACH building on campus would

remain open and that programming would continue. See id. He also confirmed that the memorial

experience dedicated to President Kennedy would also relocate to the REACH building. See id.

Another ex officio member of the Board, see id. at 1, asked certain clarifying questions,

including whether the projected $78 million operating deficit was tied only to the partial-closure

proposal and if there was any projected deficit under the two-year proposal, see id. at 9. Mr.

Buchalter responded that, per the slides included in the presentation, Delta did project a small

operating deficit under the two-year scenario. See id.; see also App. H to Ex. A at 4. And the third

ex officio member in attendance, see ECF No. 68-3 at 1, memorialized a request for financials

during the two-year project, including forward-looking revenue and operating expense projections,

a risk analysis of necessary capital expenses, and an assessment of restoring the Center’s

“performance capability.” Id. at 9–10. The Board’s Vice Chair responded that financials are

“important and have been the subject of extensive internal discussion.” Id. at 10. She further noted

that “costs escalate” each day that closure is deferred. Id.

Upon the Treasurer’s motion, the Board considered a resolution to adopt Delta’s and Mr.

Buchalter’s recommendation to close the main building of the Center to conduct renovations over

a two-year period. See id. at 10–13. The resolution read:

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 24 of 50

WHEREAS, the Board of Trustees has engaged the services of Delta Consulting
Group, an internationally recognized leader in project advisory services, risk
mitigation, and construction planning and management, to provide an independent
and objective analysis of the Center’s options to address decades of physical neglect
and deferred maintenance;

WHEREAS, the two options for the renovation and restoration presented to the
Buildings and Grounds Committee, and then to the full Board, included either a
closure of the main building with continued programming in the REACH and
offsite or a phased renovation while programming continues throughout the Center;

WHEREAS, Delta Consulting Group conducted a thorough review of the costs and
benefits of each option, and reported its findings through an oral presentation[;]

WHEREAS, Delta Consulting Group’s findings, reflected in its report and in the
Minutes, demonstrate that the risks and costs of a phased renovation and restoration
so greatly outweigh any potential benefit that the only viable safe and fiscally
prudent course is to shut down the Center’s main building entirely during
construction;

...

WHER[E]AS, the Board has also reviewed the Comprehensive Project
Development Plan dated June 8, 2026 and anticipates further updates consistent
with it[;]

WHEREAS, the Board is fully committed to its statutory and fiduciary obligations
to maintain the Center as the Nation’s Cultural Center, to maintain public access to
the Memorial to John F. Kennedy, to maintain the historic and architecturally
significant nature of the Center’s main building, and to continue to present arts and
educational programming during construction; and

WHEREAS, the Board believes that continuing its artistic and educational
programming at the Center’s performing arts facilities in the REACH, maintaining
the memorial to President Kennedy for public access, and through its partnership
with the National Symphony Orchestra, supporting those performances offsite, as
well as other signature artistic productions offsite including but not limited to the
Kennedy Center Honors and the Mark Twain Prize for American Humor, allows
the Kennedy Center to perform its statutory mandate while the main building and
theaters are closed for renovation;

IT IS HEREBY RESOLVED that the John F. Kennedy Center for the Performing
Arts shall continue to present educational and artistic programming at the REACH;
that the Center shall continue its partnership with and support of the National
Symphony Orchestra in performances at off site venues; that the Center shall
continue signature artistic productions offsite including but not limited to the

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 25 of 50

Kennedy Center Honors and the Mark Twain Prize for American Humor; that the
Memorial to President John F. Kennedy be temporarily relocated to the REACH
where it will remain open to the public; and that, based on technical assessments
and expert opinions confirming the necessity of a closure, the main building be
closed to the public for restoration and renovation in line with Delta Consulting
Group expert opinion as well as the Comprehensive Project Development Plan
dated June 8, 2026, and subsequent updates thereto.

IT IS FURTHER RESOLVED that the Executive Director and Chief Operating
Officer shall undertake all legal means to effectuate the Board’s direction in this
matter, including by seeking to dissolve the preliminary injunction, entered in
Beatty v. Trump, No. 25-cv-4480 (D.D.C.), currently preventing closure of the
main building of the Kennedy Center for construction.

Id. at 10–12. Twenty-five trustees voted to adopt the resolution. See id. at 12–13. Plaintiff,

Representative Larsen, and Senator Whitehouse voted against. See id. at 13.

E. Subsequent Events and the Board’s September 15, 2026 Decision

On August 31, 2026, the Center’s management distributed the finalized Delta Consulting

Group report to trustees. See Sep. 18 Floca Decl. ¶ 5. On September 3, an ongoing soffit-panel

assessment “identified widespread corrosion and deterioration affecting components that support

exterior soffit panels around the building perimeter.” Materials for Board of Trustees Special

Meeting of September 15, 2026, Ex. B at 3; see also id. at 30–31. The assessment revealed that 46

of the 278 panels exhibited “severe corrosion” and that 93 additional panels “exhibited mild-to-

moderate corrosion.” Id. at 3. Walter P Moore engineers concluded that “one-third of all panels”

thus “require immediate replacement.” Id.; see also id. at 30. Indeed, the engineers concluded, the

“continuing degradation of these 2,500-pound assemblies constitutes an active, building-wide

falling hazard.” Id. at 30. The Center “restricted public access” in areas “beneath or adjacent to

exterior soffit assemblies” while “engineering assessment, monitoring, and stabilization activities

proceed.” Id. at 4.

On September 4, during a “severe regional storm,” a “section of ceiling plaster detached

and fell in the Grand Foyer near the Hall of Nations entrance.” Id. at 3. The section “measured
20

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 26 of 50

approximately four feet by five feet and one inch thick and fell from an estimated height of 60

feet.” Id. The Center closed the public space under the affected area and “began further condition

assessment.” Id. Preliminary conclusions point to “water infiltration.” Id.; see also id. at 7–16

(showing existing damage and other areas of concern). The Center’s management, having

scheduled a trustee meeting for September 15, 2026 to discuss the completed Delta report,

prepared materials documenting the above findings and distributed them to trustees in advance of

that September 15 meeting. See Sep. 18 Floca Decl. ¶¶ 6–7.

At the September 15 meeting, the Board discussed management’s findings and the full

Delta report. See Prelim. Sep. 15 Board Minutes at 4–11, Ex. C. Representative Beatty participated

actively in those discussions, including by remarking that the Delta report disavowed any claim to

be a comprehensive evaluation of the safety of the building. 6 See id. at 10. When asked what more

information Plaintiff believed the Board’s deliberations lacked, she briefly discussed only the

“absence of any record on employees, performers, and the associated cost” during a shutdown and

pointed to no other relevant statutory or fiduciary obligations. Id. The Board’s Vice Chair

thereafter provided a brief response explaining likely actions the Center might take with respect to

its employees. See id. at 11. After extended discussion, the Board ratified its August 13 vote to

close the Center temporarily for a two-year renovation. Id. The Board adopted a resolution stating,

in relevant part, that the Board “was able to meet with the principal of Delta Consulting Group” to

6 On September 15, 2026, Mr. Buchalter signed an addendum to his report indicating his

belief that Plaintiff’s characterization “directly contradicts the views expressed in [his] Expert
Report.” Addendum to Expert Report ¶ 3, Ex. D. He pointed to numerous references in the Delta
report outlining “meaningful concerns for public safety.” Id. ¶ 4. And he noted that he personally
observed the “ceiling debris field on the floor in the Grand Foyer” in the “area where a portion of
the ceiling had fallen,” which, he said, “provides additional evidence that the deterioration
conditions identified in [his] report are continuing and may result in further failures that present
hazards to occupants.” Id. ¶ 5.

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 27 of 50

“fully explore the basis for its recommendation that the main building close for renovations,” that

the Board “believes that the risk associated with exposing patrons and employees to a hazardous

building greatly outweighs any reputational risk associated with closing the main building,” and

that “the main building” of the Center “shall be closed to patrons forthwith upon the dissolution

of the preliminary injunction in Beatty v. Trump, et al.” 7 Id. at 11–12.

LEGAL STANDARDS

A. Motion for Summary Judgment

A court “shall grant summary judgment if the movant shows that there is no genuine

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.

Civ. P. 56(a). “The evidence is to be viewed in the light most favorable to the nonmoving party

and the court must draw all reasonable inferences in favor of the nonmoving party.” Talavera v.

Shah, 638 F.3d 303, 308 (D.C. Cir. 2011). A party may “file a motion for summary judgment at

any time until 30 days after the close of all discovery.” Fed. R. Civ. P. 56(b).

B. Dissolving a Preliminary Injunction

Federal Rule of Civil Procedure 60(b)(5) provides the basis for a party to seek dissolution

of an injunction or order. See Am. Council of the Blind v. Mnuchin, 878 F.3d 360, 366 (D.C. Cir.

2017). To receive such relief, the movant must show “a significant change either in factual

conditions or in law” that makes “continued enforcement” of the preliminary injunction

“detrimental to the public interest.” Talbott v. United States, 775 F. Supp. 3d 445, 448–49 (D.D.C.

2025) (quoting Doe 2 v. Shanahan, 755 F. App’x 19, 22 (D.C. Cir. 2019) (per curiam)); accord,

7 As of filing, as disclosed in Defendants’ Response to Plaintiff’s Motion for Emergency

Hearing filed yesterday, the Center’s main building is closed until September 23, 2026, at the
earliest, to “address imminent life-safety risks” identified with the Center’s soffit panels, electrical
infrastructure, and other structural deterioration. See Ex. A to Sep. 16 Floca Decl. at 2, ECF No.
86-2. “The need to extend this temporary closure will be evaluated on a weekly basis.” Id.
22

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e.g., Petties ex rel. Martin v. District of Columbia, 662 F.3d 564, 569 (D.C. Cir. 2011). The party

seeking dissolution “bears the burden of establishing that changed circumstances warrant relief.”

Talbott, 775 F. Supp. 3d at 449 (quoting Am. Council of the Blind, 878 F.3d at 366).

ARGUMENT

I. Summary Judgment Is Warranted on Plaintiff’s Outstanding Claims.

The Court’s May 29, 2026 memorandum opinion provides the governing framework for

these combined motions and underscores why Defendants are now entitled to judgment as a matter

of law. Following that opinion and the Court’s contemporaneous Order, ECF No. 49, what remains

are Count Two and those portions of Counts Four, Five, and Seven related to the Board’s decision

to adopt an operational model that calls for the full, but temporary, closure of the Center. 8 See ECF

No. 49 at 3. The legal theories underpinning those remaining claims reduce to the dual theories

that the Board has violated the Center’s organic statutes and its fiduciary duties as a board of

trustees. Following the Board’s reconsideration (twice) of the question with new evidence before

it and the adoption of a superseding closure resolution, neither theory has merit. And Plaintiff’s

apparent primary basis for opposing summary judgment now—the contention that the Board’s

closure vote was a pretext to hide the Center’s “deteriorating” finances—fails both because it is

8 In its May 29, 2026 memorandum opinion, the Court granted Plaintiff’s motion as to her

claims that the Center’s adoption of a secondary name was unlawful: Counts One, portions of
Count Four, portions of Count Five, and portions of Count Seven. See Pl.’s Mot. for Partial Summ.
J. at 1, ECF No. 30; ECF No. 49 at 1. The Court granted Defendants’ motion for summary
judgment as to Count Six—Plaintiff’s claim under the Administrative Procedure Act. See ECF No.
49 at 3; ECF No. 50 at 93. The Court also granted Plaintiff’s request for summary judgment on
her claim—Count Three—that the Board had violated her rights by limiting her voting rights, as
an ex officio trustee, on the Board. See ECF No. 49 at 3; ECF No. 50 at 59. To the extent Plaintiff
might argue that any portion of Count Three remains, such portions—related to the receipt of
relevant information and the right to participate in Board meetings, see ECF No. 12 ¶¶ 84–91, are
moot. As the evidence clearly demonstrates, since the Court’s temporary restraining order, Plaintiff
has been afforded exactly the same participatory rights as every other general trustee on the Board.

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 29 of 50

irrelevant as a matter of law and unfounded a matter of fact, as the Center’s finances were expressly

presented to and considered by the Board as part of the reason the closure was necessary.

Defendants are entitled to summary judgment on the remaining claims. 9

A. The Board’s renewed closure vote comports fully with its statutory duties.

As the Court previously found, “Congress has mandated that the Board ‘maintain and

administer’ the Kennedy Center as a ‘living memorial’ to its namesake,” “which involves

‘present[ing] classical and contemporary music’ ” and other performing arts, “spearheading

performing arts ‘policy’ and ‘programs,’ ” providing “facilities for other civic activities,” and

providing “ ‘within’ the Center ‘a suitable memorial in honor of the late President.’ ” ECF No. 50

at 70 (quoting 20 U.S.C. §§ 76h(a)(1), 76j(a)(1)). And, as the Court held, it would be a “stretch to

interpret either the amorphous ‘living memorial’ language or the Center’s ‘programming’ and

‘memorial’ obligations as requiring the Center building and site to remain open at all times.” Id.

The closure plan adopted by the Board is consistent with these statutory requirements.

Indeed, the resolution explicitly notes that the Board is “committed to its statutory and fiduciary

obligations . . . to maintain public access to the Memorial to John F. Kennedy . . . and to continue

to present arts and educational programming during construction.” ECF No. 68-3 at 11. The

resolution further establishes how the Board has committed itself to satisfy these obligations,

namely by, for example, “continuing [the Center’s] artistic and educational programming at the

Center’s performing arts facilities in the REACH, maintaining the memorial to President Kennedy

9 Defendants preserve for further review their previous arguments that Plaintiff lacks
Article III standing to assert these remaining claims against the Board’s renewed closure vote, see
Defs.’ Mem. in Supp. of Cross-Mot. for Summ. J. at 9–17, ECF No. 34-1, and that Plaintiff’s
breach-of-trust claims fail as a matter of District of Columbia law, see id. at 33–34; see also Defs.’
Mem. in Opp’n to Pl.’s Mot. for TRO at 10–13, ECF No. 19. Recognizing that the Court has
already ruled on these issues, though, see ECF No. 50 at 45–47, 65–66, Defendants decline to press
them further here. See, e.g., Pepper v. United States, 562 U.S. 476, 506–08 (2011).
24

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for public access,” and supporting offsite artistic performances and productions. Id. And the

“Memorial to President John F. Kennedy [will] be temporarily relocated to the REACH where it

will remain open to the public.” Id. The September 15 resolution reaffirms those commitments and

makes clear that the Board “has been guided by the Court’s expressed thoughts about its statutory

and fiduciary obligations.” Ex. C at 11.

Even during the preliminary injunction stage, the Court found the Center had “some plans

to carry out Kennedy Center programming,” and that Ms. Beatty “therefore ha[d] not established

that a potential future failure to sponsor any programming or memorialize President Kennedy

during the two-year closure yet constitutes a statutory violation.” ECF No. 50 at 71. But the Court

also noted at the time that such plans “have not been set down in writing” and “strike the Court as

somewhat of an afterthought.” Id. The record is now clear. Defendants have expressly adopted two

written resolutions providing for both continued performing arts programming and the

maintenance of a memorial to President Kennedy. There can be no dispute on the current record

that Board firmly understands its statutory obligations and has acted in full accordance with them.

Any claims thus founded on the theory that the Board is violating its statutory obligations by

undertaking a two-year closure of the main building of the Center wholly fail.

As the Court previously found at the preliminary stage, the remaining statutory provisions

Plaintiff invokes against the Board’s closure vote fail to provide her relief, for the same reasons as

above. Specifically, even on the record previously before the Court, Ms. Beatty failed to establish

“that the proposed renovations will change the Kennedy Center’s ultimate location, height, bulk,

number of stories, size, and surrounding open space.” ECF No. 50 at 74. Even if such actions

might—which Defendants do not concede—create an obligation under the Smithsonian Facilities

Authorization Act (SAFA), for the Center to consult with the National Capital Planning

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Commission and to comply with Section 106 of the National Historic Preservation Act, that

question is moot, because it is now clear that the project expressly authorized by the Board

contemplates none of those changes. See id. at 72–73; see also ECF No. 68-3 at 10–12. Indeed,

the record establishes that the Board will not change the Center’s location, height, bulk, number

of stories, size, or surrounding open space. The Board’s August 13 resolution makes clear that it

is fully committed to its “obligations to maintain the historic and architecturally significant nature

of the Center’s main building.” ECF No. 68-3 at 11. To that end, the Board authorized the closure

of the Center’s main building “for restoration and renovation in line with . . . the Comprehensive

Project Development Plan dated June 8, 2026.” Id.; see also Ex. C at 11–12. This plan, which was

provided to all Board members prior to the August 13, 2026 meeting, demonstrates in detail the

precise scope of the project and the planned renovation work, with illustrations demonstrating that

the Center will retain its overall envelope and footprint. See See ECF No. 65-1 at 22–40. So the

statutory provisions Plaintiff cites have no bearing on the Board’s actions in voting to undertake a

closure and renovation.

For similar reasons, Plaintiff’s ultra vires and mandamus claims—on the Board’s violation

of its statutory obligations—fail. As the Court already found, “there is no express prohibition on a

temporary closure of the Center” in the applicable statutes. ECF No. 50 at 70. And, although the

Board has an “affirmative duty” to “carry out the Center’s programming and maintain a memorial

to President Kennedy,” id. at 70–71, it can fulfill that duty—in its discretion—by utilizing on-

campus spaces like the REACH to maintain certain programming and the memorial experience.

while continuing to provide support for off-campus performances and productions. See ECF No.

68-3 at 11; ECF No. 50 at 71 (noting at the preliminary stage that such activities are likely to

satisfy the Board’s statutory duties). Indeed, the Board has now done so. The failure to identify a

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“specific,” “clear and mandatory” statutory prohibition dooms Plaintiff’s ultra vires claims against

closure. Nyunt v. Chairman, Broad. Bd. of Governors, 589 F.3d 445, 449 (D.C. Cir. 2009) (quoting

Leedom v. Kyne, 358 U.S. 184, 188 (1958)). And the fact that the Board has satisfied its “clear”

duties means Plaintiff fails to satisfy the jurisdictional prerequisites to receive mandamus relief.

Dunlap v. Presidential Advisory Comm’n on Election Integrity, 944 F.3d 945, 949 (D.C. Cir. 2019)

(citing Cheney v. U.S. Dist. Ct. for D.C., 542 U.S. 367, 380 (2004)). 10

B. The Board’s renewed decision to close comports fully with its fiduciary duties.

Plaintiff’s final remaining theory—on which this Court granted her preliminary relief—

rests on the contention that the Board violated its fiduciary duties by voting to close for two years

without considering the full range of its legal duties, by making the decision based on insufficient

information, and by voting without having “meaningful say.” ECF No. 50 at 75–82. None of these

conclusions can be drawn about the Board’s August and September 2026 votes. The record now

proves conclusively that, in independently considering newly defined operational proposals to

undertake remediation and restoration work, the Board has fully satisfied its fiduciary duties.

Boards of trustees must operate under the “duties of participation and prudence, the latter

of which requires a trustee to ‘administer the trust as a prudent person would, in light of the

purposes, terms, and other circumstances of the trust.’ ” ECF No. 50 at 75 (quoting Restatement

10 The Court recognized as much under the preliminary-injunction framework: “[I]t is
unlikely that Beatty can pursue an ultra vires claim in the alternative” to her claim under 20 U.S.C.
§ 76l(b) (Count Two of her First Amended Complaint). ECF No. 50 at 67. Now, as then, “Beatty
has neither established that the closure is per se or patently ‘unauthorized by any law,’ nor that it
violates any specific statutory prohibition.” Id. (quoting Nuclear Regul. Comm’n v. Texas, 605
U.S. 665, 681 (2025)). Ultra vires relief is thus unavailable for Plaintiff’s closure claim. And,
further, because review is available under section 76l(b), mandamus relief is likewise unavailable.
See Dunlap, 944 F.3d at 949 (noting jurisdictional requirement that “no adequate alternative
remedy” be available (citation omitted)).

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(Third) of Trusts § 77(1)). 11 Trustees must also have sufficient information on which to base their

decisions in order to exercise the requisite duty of care under the law. See Restatement (Third) of

Trusts § 77 cmt. b; see also A. Hess, G. Bogert & G. Bogert, Bogert’s The Law of Trusts and

Trustees § 584 (2025 ed.) (“Bogert’s Law of Trusts”).

The “scope of a court’s review of board of trustee decisions is limited.” ECF No. 50 at 75.

For discretionary decisions, the exercise of trustees’ powers “is subject to supervision by a court

only to prevent an abuse of discretion.” Restatement (Third) of Trusts § 87. Indeed, even “in cases

of what are often called ‘mandatory’ powers or provisions, for which trustee compliance is

required . . ., the trustee often has some discretionary authority and responsibility in important

matters of detail and implementation.” Id. § 87 cmt. a. “[T]rustees having the power to exercise

discretion will not be interfered with so long as they are acting bona fide.” Shelton v. King, 229

U.S. 90, 94 (1913) (italicization added); see also Olds v. Rollins Coll., 173 F.2d 639, 642 (D.C.

Cir. 1949) (applying the Shelton rule in noting that trustees’ factual findings “bind[]” courts “if

made in good faith and if not clearly erroneous”). And, even assuming not all (or not a majority)

of trustees consent to a given action, co-trustees can “ratify” the action “if such ratification is for

the best interest of the trust.” Restatement (First) of Trusts § 194 cmt. c; see also Restatement

(Third) of Trusts § 39 cmt. b. Taken together, these rules mean—as the Court found—that boards

of trustees may “ratify past institutional actions after bona fide consideration.” ECF No. 50 at 82.

And they may do so—and in fact may sometimes be required to do so—by “obtaining and

considering the advice of others on a reasonable basis,” Restatement (Third) of Trusts § 77 cmt.

11 For the purposes of this motion, Defendants do not contest the Court’s previous
conclusion that, by enacting 20 U.S.C. § 76l(b), “Congress intended to impose on trustees
traditional fiduciary duties.” ECF No. 50 at 44 (citation omitted).
28

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b, including by delegating certain tasks to agents, see id. § 80 cmts. f, g., and by “[t]aking the

advice of legal counsel,” id. §77 cmt. b(2).

Indeed, the “prudent person” standard applicable to assess trustee actions operates in many

ways like the business-judgment rule limiting liability for corporate directors. See Bogert’s Law

of Trusts § 361 (explaining that it is “not clear” whether the “standards of care” for “trustees and

directors of nonprofit corporations” are “in reality significantly different”). The standard

underscores that, upon reaching the reasonableness threshold attendant to the prudent-person duty

of care, a court’s role in overseeing trustees’ actions comes to an end.

Under the governing standards as previously set forth by the Court, the Board has more

than satisfied its duties of participation and prudence. 12 Start with the Board’s consideration of the

“full range” of its “statutory obligations.” ECF No. 50 at 76. The Board’s August 13 meeting—

and the direct text of the closure resolution that the Board adopted at that meeting—underscore

the extent to which the Board was aware of its statutory duties and undertook to satisfy them (i.e.,

to “present programming and maintain a presidential memorial site,” id.). Secretary Lutnick

emphasized that the plans proposed for consideration would not close the Center “as a whole,” that

“programming will continue,” and that the “memorial will be moved to the REACH.” ECF No.

68-3 at 6, 8. Mr. Buchalter emphasized that the Center could “leverag[e]” the REACH to ensure

the Center “keeps the mandate during the shutdown.” Id. at 7. And the Board discussed the benefits

12 Although Plaintiff’s pretext theory fails for the reasons set forth below, see infra Section

I.C, the Board’s subsequent consideration of Center management’s proposed operational models
evinces sufficient bona fide consideration to defeat any claim that the Board’s renewed adoption
of an operation model that contemplates the full closure of the main building of the Kennedy
Center violated the Board’s fiduciary duties. See, e.g., ECF No. 50 at 82 n.34 (noting Plaintiff’s
contention that the Board failed to act in good faith throughout its earlier decision-making process).
29

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and drawbacks of the potential operating models, including following extended discussion with

Plaintiff and others on the information underlying the closure projections. See id. at 8–10.

Likewise, both the August 13 resolution and the September 15 resolution expressly

acknowledged the Board’s commitment “to its statutory and fiduciary obligations to maintain the

Center as the Nation’s Cultural Center, to maintain public access to the Memorial to John F.

Kennedy, to maintain the historic and architecturally significant nature of the Center’s main

building, and to continue to present arts and educational programming during construction.” Id. at

11; see also Ex. C at 11–12. The Board expressly resolved to “continue to present educational and

artistic programming at the REACH,” to continue “signature artistic productions” offsite, and to

“temporarily relocate[]” the memorial to President Kennedy to the REACH building. ECF No. 68-

3 at 11; see Ex. C at 12. The August and September Board meetings—and the resolutions passed

at those meetings—thus demonstrate ample consideration of the Board’s statutory obligations

sufficient to satisfy its fiduciary duties. Cf. ECF No. 50 at 76.

Next, consider the wholly changed informational landscape. Since the Court’s preliminary

injunction, the Board received significantly more information about the planned construction,

potential operational models for undertaking that construction, and the costs and benefits of those

models. The information considered by the Board in taking its August 2026 vote is more than

sufficient to satisfy its fiduciary duties. First, Center management—and the Board—received and

considered the full comprehensive project development plan from JLL, a 180-page, thoroughly

detailed report into the renovation activities to occur during the contemplated two-year closure.

The report, a “comprehensive package of planning materials,” ECF No. 50 at 78 n.30 (citation

omitted), contains architectural concepts, see ECF No. 65-1 at 27–40, a breakdown of the firms

hired to serve on the design team, see id. at 17–19, detailed timelines, see id. at 102–14, and

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detailed budget line items, see id. at 115–63. The JLL Report provides a wealth of detail about the

proposed two-year construction plan.

Delta’s analysis further supports the sufficiency of the Board’s decision. As Mr. Buchalter

discussed during the August Board meeting, the Center could undertake one of two potential paths:

(1) maintain operations in the main building of the Center while undertaking necessary (and

congressionally authorized) renovations or (2) close the main building to conduct a more-

concentrated set of construction over a shorter period of time. See ECF No. 68-3 at 6–7. As his

supporting analysis confirms, the first option would “preserve[] more Main Building programming

and generate[] more operating revenue during construction,” but would require the Center “to

maintain substantially more of its existing operating cost structure.” Ex. A ¶ 220. The second

model would “require[] the Center to accept a greater temporary reduction in Main Building

programming and earned revenue,” but would “allow[] operating expenses to be reduced

substantially during the shorter construction period.” Id. ¶ 221. Further weighing in favor of a more

concentrated model is the fact that, due to the complexity of the required construction, renovation

over a longer period of time would result in underfunding structural renovation and venue

improvement, as compared to a shorter, two-year construction period. ECF No. 68-3 at 7. And,

Mr. Buchalter explained, such complexity would result in significant safety concerns and

associated costs by conducting construction in an operating building. See id.; see also Ex. A

¶¶ 131–37. In sum, the information in front of the Board is not “woefully insufficient.” ECF No.

50 at 77. Trustees had—and continue to have—the benefit of a detailed package of construction

planning materials (the JLL Report), a cost-benefit analysis (the Delta Report), and recent

information regarding significant safety and structural concerns within the Center in voting to

adopt an operational model that contemplates closure of the building during renovations.

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Indeed, the information before the Board made emphatically clear that complete closure of

the main building, rather than phased closure, was the only responsible option. Given the absence

of any clear, overwhelming reason necessitating a phased closure, Mr. Buchalter’s conclusion that

a phased closure would result in a $300 million funding shortfall to conduct the necessary repairs,

as opposed to a gap of less than $30 million if the building were completely closed, establishes

that failing to pursue the closure model chosen by the Board would be imprudent under the

circumstances. 13 See ECF 68-3 at 8; App. H to Ex. A at 3–4. JLL’s estimate that a phased closure

of parts of the building would cost $41 million more than a temporary closure of the building—in

construction costs alone—further supports this conclusion. See ECF No. 65-1 at 4.

And if there were any doubt as to the sufficiency of the information in front of the Board

in August, the Board reconvened on September 15, over two weeks after receiving the full Delta

report and days after receiving information concerning the Center’s ceiling collapse, again

discussed the merits of closure, and again voted in favor of temporary closure to effectuate the

necessary renovation and restoration. See Ex. C at 7–12. This is the work of a prudent Board

making a prudent decision. Indeed, the significant structural and safety deficiencies—documented

for the Board at its September 15 meeting—that have come to light in recent weeks underscore the

urgency for undertaking the proposed two-year closure. As described above, preliminary

engineering assessments indicate that the Center’s soffit panels present a severe “falling-object

13 At a certain point, it seems fair to question whether the continued delay to renovation

resulting from the prosecution of this lawsuit, in light of the extensive structural and safety needs
now thoroughly documented in this litigation and laid out in full for trustees’ consideration, might
itself constitute a breach of fiduciary duty. See Restatement (Third) of Trusts § 76 cmt. d
(indicating that only “reasonable steps” to enforce a trust will satisfy a trustee’s duty to protect the
trust estate and that such “reasonable steps” might include abandoning even a “valid claim” if “the
costs and risk of litigation make such a decision reasonable under all the circumstances”).

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 38 of 50

and life-safety hazard in areas regularly occupied by the public.” Ex. B at 3. And water intrusion

resulted in the partial collapse of a significant portion of ceiling plaster in a public area of the

Center, with “at least seven” other ceiling locations appearing to have similar deterioration. Id.

Facts like these only underscore that the Board’s decision to close for construction is, at bottom,

eminently prudent.

Plaintiff has no credible argument that the Board lacked any meaningful say in a

“foreordained” closure decision. ECF No. 50 at 81. The record underscores that the Board received

the recommendation of independent experts with no preconceived views, Ex. A ¶ 47, meaningfully

engaged with the proposed operational models, inquired about the analysis underpinning the

independent assessments, and engaged in fruitful conversations aimed at addressing any concerns

trustees might have about the Center’s path forward. See ECF No. 68-3 at 8 (discussing—and

addressing—Plaintiff’s concerns about “how programming would continue”); see also id. at 9

(discussing questions about how the Delta analysis estimated each scenario’s operating deficit);

see also id. at 13–14 (discussing how trustees might reach common ground on the Center’s path

forward). The Board’s vote reflected bona fide, legitimate discussion of—and, indeed,

compromise over—the Board’s proposed closure plans. 14

C. No genuine disputes of material fact preclude summary judgment.

The facts material to the remaining claims in this litigation are not—and could not

reasonably be—in dispute. Record evidence provides the Court ample basis to determine whether

the Board satisfied its legal obligations in voting to adopt an operational model contemplating full

14 Indeed, the specifics of the adopted plan reflect express acknowledgments that, for
example, programming must be maintained, the memorial experience must continue to serve the
public, and artistic productions must continue—all of which were developed in response to trustee
and management input, including by Plaintiff herself.

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closure of the Center during two years of renovation and restoration. 15 And as long as reasonable

minds might dispute the prudent path for the Board to take, then the judicial role in cabining that

discretion is at an end, and there can be no dispute of material fact.

Plaintiff’s primary argument that summary judgment is unwarranted appears to relate to

her belief that “the decision to close the Kennedy Center was a pretextual maneuver to hide the

Kennedy Center’s deteriorating financial performance.” Joint Rule 26 Report at 3, ECF No. 63.

Plaintiff’s effort to undertake invasive and unnecessary discovery—a textbook fishing

expedition—is incorrect for two primary reasons: (1) the question of pretext is, on this record,

wholly immaterial; and (2) the record undermines any implication of pretext, as the basis for

Plaintiff’s allegation—“deteriorating financial performance”—was disclosed to the Board in its

consideration of the August closure vote. Indeed, the Center’s immediate financial outlook forms

much of the basis for the Delta report’s recommendation that a temporary closure represents the

prudent path forward. See Ex. A ¶¶ 202–25. The disclosure of the very piece of information

Plaintiff alleges is an unspoken basis for a pretextual vote entirely defeats any claim that bad faith

infected the Board’s decision-making process. The very basis that Plaintiff alleges was unstated—

and resulted in a pretextual vote—was, in fact, provided to the Board in its discussion of the

Center’s financial outlook. An explicit basis cannot serve to show unlawful pretext.

15 The specific action Plaintiff challenges is the Board’s plan to close for renovation, which

it effectuated through its closure vote on March 13, 2026 that it later superseded through its votes
on August 13 and September 15, 2026. See ECF No. 34-5 at 10–11; ECF No. 68-3 at 12–13; Ex.
C at 11–12. As Defendants earlier argued, “claims about unknown future events that have yet to
occur”—like the future extent of construction, to the extent it differs from the plan the Board
adopted—“would not yet be ripe.” ECF No. 39 at 15 n.5 (citing Texas v. United States, 523 U.S.
296, 300 (1998)). There is no dispute as to the scope of the renovation plans as they were developed
by JLL and Delta and adopted by the Board of Trustees. Contra ECF No. 38 at 36–37 (arguing
that the project’s scope is uncertain). Defendants are entitled to summary judgment on the record
as it currently exists, not as it could hypothetically exist at some point in the future.
34

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First, as a matter of law, a court’s review of trustee action ends upon the finding that the

relevant board of trustees satisfied its duty to “administer the trust as a prudent person would” and

to “exercise adequate ‘care, skill, and caution’ in decision-making.” ECF No. 50 at 83 (quoting

Restatement (Third) of Trusts § 77(1)–(2)). Upon making the showing that a board adequately and

in good faith considered sufficient information and prudently undertook a decision made in light

of the purposes of the trust, a court “will not . . . interfere[].”Shelton, 229 U.S. at 94. The finding

that the trustees satisfied the “minimum requirements” of their duties with “due care and some

modicum of independence,” ECF No. 50 at 92, and did so while “acting bona fide,” Shelton, 229

U.S. at 94, ends a court’s inquiry into the lawfulness of the action at issue. As explained above,

the Board here did just that. But, regardless, hypothetical allegations of pretext are not material to

making that legal finding where, as here, the record provides ample evidence of the Board’s

independent, informed, and considered decision to renew its plans for a two-year closure.

When faced with evidence that the Board has met that minimum threshold, there is no

further role for this Court to play. See ECF No. 50 at 75; see also Shelton, 229 U.S. at 94;

Restatement (Third) of Trusts § 87. And if the evidence shows that a board has acted “within the

bounds of a reasonable judgment,” Restatement (Third) of Trusts § 87 reporter’s notes cmts. b and

c (citation omitted), judicial deference means that the Board’s decision must stand. Determining

whether the Board’s decision here was within the bounds of a reasonable judgment does not

depend on whether the Board may have had unstated reasons for taking the actions it did. All that

matters is that the Board received, considered, and acted on sufficient evidence to support the

decision it made. ECF No. 50 at 75; see also In re U.S. Bank Nat’l Ass’n, 27 N.Y.S.3d 797, 806–

07 (Sup. Ct. 2015) (citing Restatement (Third) of Trusts §§ 80, cmt. b, 93, cmt. c, and concluding

that, because the trustees “properly obtained and considered the opinions of several highly

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respected outside experts,” “no deficiencies in the experts’ methodologies” appeared, and the

“methodologies [did] not appear on their face to be implausible,” no abuse of discretion existed);

cf. Day v. Apoliona, 616 F.3d 918, 926–28 (9th Cir. 2010) (holding that where the terms of a trust

confer discretion to follow trust purposes trustees may exercise that discretion to act in pursuit of

one or more of those purposes even if those “benefits may extend beyond the trust’s purposes”).

Moreover, nowhere does the common law appear to contemplate that some unstated motive

alone might be sufficient to invoke judicial oversight to invalidate the considered, otherwise

permissible action. The Restatement notes only that “[a]n abuse of discretion may result from the

exercise of discretionary authority in bad faith or from improper motive.” Restatement (Third) of

Trusts § 87 cmt. c (emphasis added). Such circumstances occur only where a trustee “acts

dishonestly, such as when the trustee receives an improper inducement for exercising the power in

question,” or from when the trustee “acts from an improper even though not dishonest motive,

such as when the act is undertaken in good faith but for a purpose other than to further the purposes

of the trust or, more specifically, the purposes for which the power was granted.” Id. And here,

there is no dispute that the closure vote does fulfill certain trust purposes: the Board’s duties to

plan and construct capital repairs and improvements, see 20 U.S.C. § 76j(a)(1)(G), and to provide

all necessary maintenance and alterations of the building and site in a manner consistent with

“requirements for high quality operations,” id. § 76j(a)(1)(H)(ii). Moreover, as discussed above

and in the independent analysis that the Board received, the trustees might readily view the

construction as enabling the long-term fulfillment of other trust purposes, like its duties to present

performing arts and to provide facilities for civic activities, by ensuring that the Center will

continue to survive as a safe and functional performing-arts venue long into the future. At bottom,

ample evidence shows that the Board satisfied its fiduciary duties here. As a matter of law, that

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suffices. Any allegation of pretext is irrelevant. Cf. In re Curlew Valley Assocs., 14 B.R. 506, 513

n.11a (Bankr. D. Utah 1981) (“[S]o long as the trustee can articulate reasons for his conduct . . .

the court will not inquire into the basis for those reasons.”).

Second, Plaintiff’s pretext argument appears to be that Defendants’ closure vote was

calculated “to hide the Kennedy Center’s deteriorating financial performance.” ECF No. 63 at 3.

As discussed above, that fact is irrelevant to deciding whether the Board properly exercised its

fiduciary duties in deciding to close for construction. But even taking Plaintiff’s argument on its

terms, it is meritless. First, it is based on an erroneous premise: The financial outlook at the

Kennedy Center supports closure. Indeed, it is a key premise of Mr. Buchalter and Delta

Consulting Group’s recommendation that the main building be closed for the construction period

instead of kept partially open. Mr. Buchalter’s presentation to the Board noted that the Center’s

yearly revenue “would be expected to decline” under the partial-closure model, which was

“already visible in year-over-year revenue decline because of uncertainty and friction” in the

Center’s operations. ECF No. 68-3 at 7. Delta conducted its analysis with the benefit of the

Center’s “audited FY23 and FY24 financial statements, unaudited draft FY25 financial statements,

and FY27 budget scenarios prepared by the Center’s finance team” and specifically noted in its

recommendation that the Center already entered the construction program with an “existing

deficit.” Ex. A ¶¶ 204, 207; see also App. V to Ex. A; App. W to Ex. A; App. V to Ex. A.

This same evidence also establishes that there is nothing “hid[den]” about the Center’s

financial performance—another essential premise of Plaintiff’s theory. There can be no dispute

that the Board has been made fully aware of the Center’s financial outlook. Indeed, the Board

received a “report on the Center’s financials” at the August 13 meeting. ECF No. 68-3 at 10.

Whatever Plaintiff might say about Defendants’ purported desire to hide some kind of smoking-

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gun evidence about the Center’s financial condition, she cannot credibly claim that Defendants

have actually hidden any material information about the Center’s finance from its trustees. There

is no genuine dispute that accurate information has been provided to all trustees. Indeed, the Court

has previously noted the lack of dispute in the public record of this case about declining ticket

sales. See ECF No. 50 at 56 n.23 (citing Def’s Resp. to Pl.’s Statement of Material Facts ¶¶ 34–

36, ECF No. 33-1). There is thus no genuine dispute of any material fact related to alleged pretext

that might preclude summary judgment on Plaintiff’s remaining claims.

II. The Preliminary Injunction Should Be Dissolved.

Even if the Court determines that outstanding material disputes of fact preclude summary

judgment on Plaintiff’s remaining claims, the preliminary injunction that the Court entered against

the Center’s closure for construction should be dissolved. The Board’s August 13 and September

15 closure votes—made on a materially different record than its earlier vote—superseded the

Board’s March 16 closure vote. And the Court’s May preliminary injunction continues to impose

significant costs on the Center, and thus harms the public interest, with each day that passes. Given

the significant change in the factual record underlying this litigation, renewed consideration of the

equities supports dissolving the preliminary injunction.

A. Defendants have satisfied their burden to show that significantly changed
factual conditions merit dissolution.

By adopting a renewed closure vote based on factual evidence compiled and generated

after the Court’s entry of a preliminary injunction, Defendants can now point to “a significant

change” in “factual conditions” sufficient to support dissolution of that preliminary injunction.

Doe 2, 755 F. App’x at 22 (quoting Horne v. Flores, 557 U.S. 433, 447 (2009)).

First, the “government took substantial steps to cure the procedural deficiencies the [C]ourt

identified” in its injunction of the March 13 closure vote. Doe 2, 755 F. App’x at 23. Such steps

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include ensuring that trustees expressly consider the “full range” of the Board’s “statutory

obligations in determining that a wholesale shuttering of the Kennedy Center was appropriate.”

ECF No. 50 at 76. As discussed in detail above, the Center’s management went to great lengths to

ensure that the proposals laid before the Board reflected a holistic view of the Board’s statutory

obligations and how those obligations might be balanced against each other in considering viable

paths forward. See, e.g., ECF No. 68-3 at 6 (noting that Delta sought to identify the most effective

path forward for repair and renovation “while balancing operations and mission” and considering

“schedule impacts,” “operating expenses,” and “implications for the Center’s long-term mission”);

id. at 7 (noting that the REACH could be leveraged to fulfill the Center’s “mandate” and to

continue “the memorial experience”); id. at 8 (discussing how keeping the REACH open might

allow programming to continue); id. at 11 (resolving that the Board is “fully committed to its

statutory and fiduciary obligations” to present programming and maintain the memorial to

President Kennedy); see also Ex. A ¶¶ 211, 215.

The Center also provided trustees substantially more information on which they could base

their decision than during the March closure vote. Cf. ECF No. 50 at 77. Management hired both

JLL and Delta to conduct intensive and independent analyses of the renovation needs facing the

Center, how those needs intersect with the Center’s statutory duties and operating models, and

how the Center might ameliorate impacts from the necessary repair and restoration activities.

Trustees received a detailed report from JLL that served as a “comprehensive package of planning

materials” with “an overall architectural concept, identification of the major professional

consultants who will lead the project, timelines, budgets, and supporting analysis.” ECF No. 50 at

78 n.30. Trustees also received further analysis in the form of a presentation from Mr. Buchalter—

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analysis that supported by an in-depth cost-benefit report. See generally Ex. A. The informational

landscape has, thus, wholly changed since the Court entered its preliminary injunction.

And, finally, the Board’s renewed discussion reflects that it has had sufficient time and

motivation—given the Court’s injunction—to provide a “meaningful say” in the closure vote. ECF

No. 50 at 81. Trustees have now had months to “consider perhaps the most momentous decision

in the Center’s lifetime since it opened in 1971.” Id. at 82. They have received significant amounts

of expert-developed information aimed at ensuring trustees are informed about the Center’s

structural and operational needs. And the discussions at the Board’s meetings also show that

trustees engaged in a meaningful and informed discussion over the Center’s future. Plaintiff herself

raised several questions and engaged in back-and-forth discussion with others present, including

Mr. Buchalter. See ECF No. 68-3 at 8–9. Others asked Mr. Buchalter for clarity on certain elements

of Delta’s financial analysis, asked for additional financial information, and received responses to

their questions. See id. at 9–10. In short, the Board fulfilled its duty to consider the information

presented to it and provided meaningful input on the proposed two-year closure before adopting

the resolution effectuating the closure. Those changed factual conditions suffice to support

dissolution of the Court’s preliminary injunction.

B. Continued enforcement of the preliminary injunction would be detrimental to
the public interest, and the equities support dissolution.

The changed factual conditions inherent in the Board’s renewed closure vote “make[]

continued enforcement” of the injunction “detrimental to the public interest.” Talbott, 775 F. Supp.

3d at 448–49 (quoting Doe 2, 755 F. App’x at 22). 16 Because of this litigation, and because of

Plaintiff, the Center is in limbo. The Court recognized in issuing its preliminary injunction—

16 Because the government is the party opposing continued enforcement of the injunction,

the “public interest” and “harm to” the government are one and the same. Nken v. Holder, 556
U.S. 418, 435 (2009).
40

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rightfully, in Defendants’ view—that the Board “might have assessed the propriety of closure in a

number of prudent ways.” ECF No. 50 at 91. It has now done just that. And it is unable to effectuate

that decision—which will require the implementation of a significant amount of planning work

while necessarily foreclosing the use of the Center’s main building as a performance venue—while

the Court’s preliminary injunction remains in place. The very fact that the two potential paths

forward are mutually exclusive (the Center cannot close its main building while simultaneously

planning for performances to occur in the main building during that closure) means that the

Center’s operational model is effectively frozen in place while this litigation continues. That

uncertainty creates a significant harm to the Center and to the public interest.

First and foremost is the threat to public safety that the Center presents in its current state,

made acute by investigations that have only yielded preliminary safety results in recent days and

weeks. Walter P Moore, which has been conducting assessments of overhead soffit panels for

several months, preliminarily determined in early September that roughly one-third of soffit panels

currently in place at the Center “require immediate replacement.” Ex. B at 29. “[C]ontinuing

degradation of these 2,500-pound assemblies constitutes an active, building-wide falling hazard.”

Id. And similar risks were made more acute in the context of another problem that has been well

documented in this litigation: water intrusion through the roof of the Center. Such intrusion caused

a large section of ceiling plaster to fall into a public space within the Grand Foyer of the Center,

near the main entrance of the Concert Hall; several other areas of concern currently exist in public

spaces of the Center. See id. at 3; see also id. at 6–15. Center management considers this event a

significant life-safety incident. See id. at 3. Further investigation and significant remediation

activities are, at this stage, a necessity—and the Center should be permitted to close for an orderly

renovation to address that necessity.

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 47 of 50

Even outside the context of these acute risks to public safety, there are also distinct risks to

the Center’s finances. As the Delta analysis confirms, operating expenses—which are currently

largely frozen in place as the Center complies with the Court’s order—“already exceed the

combination of its earned operating revenues and annual contributions and other support.” Ex. A

¶ 207. Closure of the main building would “allow[] the Center to reduce its operating cost structure

during construction.” Id. ¶ 214. Indeed, although “mission-based programming would continue

primarily at the REACH” and in supporting other events, closure would allow the Center to

“substantially reduce the costs associated with maintaining programming and public operations”

throughout the main building. Id. ¶ 215. Expenses associated with maintaining the Center’s current

operational model have continued to accrue, with no revenue offset—given that the status quo

prior to the preliminary injunction contemplated an empty programming schedule for the proposed

two years of programming—to limit the operational impact of those expenses. Harms thus

continue to accrue daily to the Center and, correspondingly, to the public interest.

Having taken two valid closure votes, the Board’s interests—and the public interest—face

additional harm from the Board’s inability to conduct certain remediation and restoration activities

with the Court’s injunction in effect. At the preliminary-injunction stage, the Court declined to

prevent Defendants from conducting “limited closures of spaces in and around the remedial work”

contemplated by the congressional appropriation. ECF No. 50 at 86. But, as the record now clearly

demonstrates, and as the Board affirmed in its August vote, it is almost impossible—at a minimum,

highly impractical—to conduct required repairs without a sustained, two-year closure of the main

building of the Center. See Ex. A ¶¶ 127–38; see also ECF No. 68-3 at 6 (discussing the difficulties

inherent in undertaking all of the required work in a partially open building).

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 48 of 50

And it is certainly impossible to conduct the full scope of contemplated repairs and

restorations under a partial-closure model, given the amount of funding Congress appropriated to

the Center. See Ex. A ¶¶ 190–200 (explaining that, under a partial-closure model, existing funding

could account for critical repairs to utilities but would leave much of the structural renovation

unfunded and all of the venue-improvement construction unfunded); see also id. ¶ 200 (explaining

that the phased alternative “does not eliminate the need for structural or venue work” and that

“[t]emporary systems, repetitive mobilization and demobilization, restricted access, off-hours

construction, public protection, utility cutovers,” and other similar activities required in a partially

open building would “consume funding that would otherwise be available for permanent

improvements”); see also App. H to Ex. A at 3–4. The public interest supports reducing the amount

of money that, as of now, is being put toward activities that confer minimal public benefit and,

instead, redirecting the Center’s resources toward activities that help the Board fulfill its duty to

maintain a safe and high-quality performance venue and, in two years, to reopen for public access

and programming in the Center’s main building. See Dellinger v. Bessent, 766 F. Supp. 3d 57, 70–

71 (D.D.C. 2025) (noting that the “loss” of a statutory “ability to do what Congress specifically

directed” a statutory actor “to do” qualifies as a basis to receive relief).

Finally, the Court’s conclusion that any timeliness assertion “falls flat,” ECF No. 50 at 86,

no longer holds true. Congress adjudged that funding for the Center’s renovation be used prior to

September 30, 2029. See 139 Stat. at 157. And well-settled law confirms that this Court is “not

free to ignore [Congress’s] judgment and rewrite the statute to include a [different] timetable.” In

re Am. Fed’n of Gov’t Emps., AFL-CIO, 837 F.2d 503, 506 (D.C. Cir. 1988). At the preliminary-

injunction stage, the Court declined to credit the government’s argument here, noting that

“renovations are still very much in planning mode” with “no official, up-to-date building plan or

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 49 of 50

master construction schedule” in place. ECF No. 50 at 86. That is no longer the case. There is an

official, up-to-date building plan and master construction schedule: the JLL report. And although

the report contemplates that the project will, as of today, be done in advance of the congressional

deadline, every day that passes without substantial progress on construction threatens that timeline.

The Delta report assumed that major construction would begin roughly “two months later than

JLL’s original July 6, 2026, planned start date,” itself a date that has come and gone. Ex. A ¶ 168.

And under the closure model, the estimated “25 to 28 months” of construction “would place Main

Building reopening between October 2028 and January 2029.” Id. Slipping any further threatens

the Center’s ability to meet the deadline set it by Congress.

The public interest strongly favors dissolving the Court’s preliminary injunction. The

Center’s future hangs in the balance. The status quo—with the injunction in effect—has led only

to increased safety risks, heightened uncertainty, resulted in undue expense, and led to an

underused, unrepaired Center with no meaningful ability to move to the next stage in its storied

history. That, paired with the significantly changed factual conditions following the Board’s

renewed closure votes, should lead this Court to dissolve its preliminary injunction.

CONCLUSION

For the reasons stated above, the Court should grant Defendants’ motion to dissolve the

preliminary injunction. A “court must never ignore significant changes in the law or circumstances

underlying an injunction lest the decree be turned into an instrument of wrong.” Salazar v. Buono,

559 U.S. 700, 714–15 (2010) (plurality op.). And the Court should grant Defendants’ motion for

summary judgment.

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Case 1:25-cv-04480-CRC Document 88-1 Filed 09/18/26 Page 50 of 50

Dated: September 18, 2026 Respectfully submitted,

BRETT A. SHUMATE
Assistant Attorney General, Civil Division

ERIC J. HAMILTON
Deputy Assistant Attorney General

BRANTLEY MAYERS
Counsel to the Assistant Attorney General

STEPHEN M. ELLIOTT
Assistant Branch Director

CHRISTOPHER M. LYNCH
Chief Litigation Counsel

/s/ William S. Jankowski
WILLIAM S. JANKOWSKI
D.C. Bar No. 90021524
Trial Attorney
U.S. Department of Justice
Civil Division, Federal Programs Branch
1100 L Street NW
Washington, DC 20530
(202) 353-7578
william.s.jankowski@usdoj.gov

Counsel for Defendants