Third Circuit Narrows APA Review of Park-Service “Exhibit Decisions” and Limits § 407n Mutual-Agreement Rights to Independence Square

1. Introduction

City of Philadelphia v. Secretary U.S. Department of Interior (3d Cir. June 18, 2026) arose from the National Park Service’s (NPS) January 22, 2026 removal of interpretive panels and shutdown of video exhibits at the President’s House site within Independence National Historical Park. The City of Philadelphia sued the Secretary of the Interior and related federal defendants, and the District Court issued a preliminary injunction requiring restoration and restricting further changes absent “mutual agreement” with the City.

On interlocutory appeal, the Third Circuit focused on threshold jurisdictional issues. The case turned on (i) whether the City had standing, and (ii) whether the Administrative Procedure Act (APA) permitted review of Counts II–V. The court also addressed the scope of 16 U.S.C. § 407n—specifically whether its “mutual agreement” constraint extended beyond Independence Square to the broader Park and the President’s House site.

2. Summary of the Opinion

  • Standing: The City had Article III standing at the preliminary-injunction stage, but not for many reasons the District Court relied on. Standing was adequately supported by the City’s allegation of a concrete injury tied to residual, contract-linked expectations (without resolving merits).
  • APA barrier: The APA barred judicial review of Counts II–V because NPS’s exhibit removal was not “agency action” within 5 U.S.C. § 551(13) and, independently, was not “final” agency action under Bennett v. Spear.
  • § 407n’s reach: The “mutual agreement” clause in 16 U.S.C. § 407n applies only to the “Independence Hall National Historic Site” (Independence Square) and does not extend to the President’s House site.
  • Ultra vires claim: To the extent Count V (ultra vires) survived outside the APA, it failed because § 407n does not apply to the President’s House.
  • Disposition: The Third Circuit vacated the preliminary injunction and remanded with instructions to dismiss Counts II–V for lack of jurisdiction and to dispose of Count I consistent with the opinion. The court emphasized it lacked jurisdiction in this interlocutory appeal to rule on Count I.

3. Analysis

3.1. Precedents Cited

A. Federalism framing and enumerated powers

  • McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819) was invoked as historical backdrop: even a stronger federal government remains one of limited, enumerated powers. This sets tone rather than supplying a doctrinal test for the APA/jurisdiction issues.

B. Jurisdiction-first sequencing and standard of review

  • Reading v. N. Hanover Twp., 124 F.4th 189 (3d Cir. 2024) supplied the sequencing principle: courts must address jurisdiction before preliminary-injunction prerequisites.
  • Nat'l Shooting Sports Found. v. Att'y Gen. of N.J., 80 F.4th 215 (3d Cir. 2023) supplied the standard: subject-matter jurisdiction is reviewed de novo.

C. Standing doctrine (injury, traceability, redressability; procedural injury limits)

  • Murthy v. Missouri, 603 U.S. 43 (2024) was used for the preliminary-injunction-stage burden: a “clear showing” of likely injury, causation, and redressability.
  • Dep't of Educ. v. Brown, 600 U.S. 551 (2023), Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992), and Summers v. Earth Island Inst., 555 U.S. 488 (2009) anchored the rule that a procedural right, standing alone, is insufficient; it must protect a concrete interest (no “procedural right in vacuo”).
  • TransUnion LLC v. Ramirez, 594 U.S. 413 (2021) supported the court’s articulation that standing can be grounded in concrete harm connected to legally protected interests (here, alleged contract-linked expectations), though the court carefully separated standing from merits.
  • Fed. Election Comm'n v. Cruz, 596 U.S. 289 (2022) and Warth v. Seldin, 422 U.S. 490 (1975) were cited for the proposition that standing does not depend on the ultimate legality of the challenged conduct; courts assume the merits of the legal theory for jurisdictional purposes.

D. Statutory interpretation canons

  • Pulsifer v. United States, 601 U.S. 124 (2024) and Comm'r v. Lundy, 516 U.S. 235 (1996) supported a key interpretive move: different terms used in the same statutory context (“Site” vs. “Park”) are presumed to bear different meanings; collapsing them creates superfluity and textual distortion.

E. APA “agency action” and “finality” limits

  • Norton v. S. Utah Wilderness All., 542 U.S. 55 (2004) limited “failure to act” to failures to take an agency action defined in § 551(13), preventing litigants from turning any agency conduct into reviewable APA action.
  • Gentile v. Sec. & Exch. Comm'n, 974 F.3d 311 (3d Cir. 2020) was used to explain that § 551(13)’s categories are “exemplary, not exhaustive,” but still bounded—especially because waivers of sovereign immunity are construed in favor of the United States.
  • Bennett v. Spear, 520 U.S. 154 (1997) provided the two-prong finality test: consummation of decisionmaking and legal consequences/determination of rights or obligations.
  • Vanderklok v. United States, 868 F.3d 189 (3d Cir. 2017) and Montanez v. Price, 154 F.4th 127 (3d Cir. 2025) supported judicial notice of publicly available government web content (here, NPS’s posted “New Exhibits”), which the court used to rebut the notion that removal was the agency’s “last word.”

F. Ultra vires doctrine and internal guidance documents

  • Nuclear Regul. Comm'n v. Texas, 605 U.S. 665 (2025) supplied the ultra vires standard: the agency must have acted entirely beyond delegated powers and contrary to a specific statutory prohibition.
  • Wilderness Soc'y v. Norton, 434 F.3d 584 (D.C. Cir. 2006) supported the proposition that internal agency manuals/policies are nonbinding and generally do not create enforceable rights; the court analogized NPS Management Policies and the Foundation Document to such non-enforceable guidance.
  • Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) was used by analogy to explain that statutory terms like “appropriate” can constrain discretion for arbitrary-and-capricious review—though the court ultimately dismissed the claim for want of reviewable action/finality.

3.2. Legal Reasoning

A. Standing: separating “injury” from “who is right”

The Third Circuit affirmed standing but sharply criticized the District Court’s reasoning. It rejected reliance on (i) sunk municipal expenditures, (ii) speculative tourism harm, (iii) generalized interests in “telling history,” and (iv) “public benefit” language that would improperly bootstrap residents’ grievances into municipal standing.

The court instead identified an adequately concrete injury for standing purposes: the City plausibly alleged harm to a legally cognizable interest rooted in the parties’ agreements—i.e., an alleged failure to “maintain” the President’s House site in line with the jointly adopted project vision. Importantly, the court emphasized that this standing determination did not endorse the City’s interpretation of the contracts or statutes; merits were bracketed under Fed. Election Comm'n v. Cruz and Warth v. Seldin.

B. Statutory scope: § 407n protects the City’s 1948-owned property, not the entire Park

A central merits-adjacent clarification (relevant both to standing theories and ultra vires) was the court’s construction of 16 U.S.C. § 407n. The mutual-agreement clause applies to “the property within the Independence Hall National Historic Site,” a term the court held has a fixed, historically anchored meaning: the five-acre Independence Square block bounded by Walnut, Fifth, Chestnut, and Sixth Streets, as designated in 1943 (8 Fed. Reg. 7283).

Because the President’s House site is a block north (Sixth and Market), it falls outside the “Independence Hall National Historic Site.” The District Court’s approach—treating “Site” as effectively coextensive with the 55-acre “Park”—violated standard textual canons and created an “odd result”: a municipal veto over broad federal property and, by parity of reasoning, an implausibly expansive veto for the Carpenters’ Company as well.

C. The APA gateway: “agency action” is not “anything an agency does”

The court’s most significant doctrinal move was its holding that the exhibit removal was not “agency action” under the APA’s defined terms. Section 551(13) enumerates “rule, order, license, sanction, relief” (or equivalents), and the City failed to fit exhibit removal into any of those boxes. The City’s late-breaking “sanction” theory—claiming a “withholding of property”—failed because the City did not own the exhibits or the site.

Relying on Norton v. S. Utah Wilderness All., the court rejected efforts to stretch “failure to act” into a general review hook. And relying on Gentile v. Sec. & Exch. Comm'n, it underscored that because APA review entails a waiver of sovereign immunity, definitional boundaries matter.

D. Finality: evolving museum interpretation is not necessarily a consummated agency position

Independently, the court held there was no “final” agency action under Bennett v. Spear. It took judicial notice of NPS’s public posting of “New Exhibits” and NPS’s readiness to install replacements, concluding the removal was not the consummation of decisionmaking—i.e., not the “last word.”

The court also found no Bennett “legal consequences” for two claims:

  • Count III (16 U.S.C. § 407m and § 407n): The City lacked legal rights to curate or veto President’s House interpretive content, so the alleged statutory violations did not determine the City’s rights/obligations.
  • Count IV (departure from the 2017 Foundation Document): NPS Management Policies disclaimed enforceable rights, and the Foundation Document was “basic guidance,” not legally binding; thus no legal obligation flowed from it.

E. Ultra vires: no “specific statutory prohibition,” no claim

The court explained that even if the APA did not foreclose ultra vires review in the abstract, Count V failed under Nuclear Regul. Comm'n v. Texas because the statutory “mutual agreement” prohibition (§ 407n) did not cover the President’s House site at all.

3.3. Impact

  • Constraining APA challenges to “interpretive choices” in parks and museums: The opinion signals that curatorial or interpretive changes—at least when implemented as on-the-ground operational decisions rather than formal directives—may fall outside “agency action” and/or “final agency action,” limiting APA-based suits seeking to lock in exhibit content.
  • Reinforcing definitional rigor in APA litigation: Plaintiffs in the Third Circuit must plead and prove (early) how the challenged conduct fits § 551(13). “Agency did X” is insufficient; the action must resemble a rule/order/license/sanction/relief (or equivalent).
  • Clarifying municipal leverage under § 407n: Municipal consultation/veto rights depend on geography and ownership as fixed by the “Independence Hall National Historic Site” designation; cities cannot generalize cooperative-agreement language into park-wide control absent clear statutory text.
  • De-risking “planning documents” from judicial enforcement: Foundation Documents and similar internal planning frameworks are less likely to be treated as enforceable constraints, insulating agencies from litigation based solely on alleged deviation from programmatic guidance.
  • Channeling disputes into contract/Tucker Act pathways: Although the Third Circuit did not decide Count I, the overall structure of the decision—standing grounded in alleged contract-linked expectations, but APA review unavailable—pushes comparable disputes toward contract remedies (often in the Court of Federal Claims under the Tucker Act framework), rather than APA injunctions.

4. Complex Concepts Simplified

Standing
A plaintiff must show a real, personal injury likely caused by the defendant and likely fixable by the court. Importantly, the court can find standing without deciding whether the plaintiff’s legal theory ultimately wins.
Procedural injury
Complaints about “not being consulted” can support standing only if the lack of procedure threatens or harms a separate concrete interest. A bare right to process, without real-world stakes, is not enough.
APA “agency action”
The APA permits review only of certain kinds of agency conduct (rules, orders, licenses, sanctions, relief, or close equivalents). Operational choices that do not fit these categories may be unreviewable under the APA.
Final agency action
Courts generally review only agency actions that are definitive (the agency has finished deciding) and legally consequential (they determine rights/obligations or create legal effects). Interim steps or evolving positions often fail this test.
Ultra vires
A narrow doctrine allowing courts to stop an agency that acts beyond its statutory authority and against a specific statutory command. If the statute does not actually apply, there is no ultra vires violation.
Internal guidance vs. binding law
Agency planning documents may guide staff but do not necessarily create enforceable duties. Courts look for binding language and legal consequences; disclaimers against enforceability matter.

5. Conclusion

The Third Circuit’s decision is a jurisdiction-centered precedent with two principal takeaways. First, not every high-profile agency decision—especially curatorial or interpretive changes at a historic site—constitutes reviewable “agency action,” and even fewer qualify as “final” action under the APA. Second, 16 U.S.C. § 407n’s mutual-agreement protections are geographically and historically cabined to Independence Square (the “Independence Hall National Historic Site”), not the entire Independence National Historical Park.

By vacating the preliminary injunction and ordering dismissal of the APA and ultra vires counts, the court reorients similar disputes away from APA-based injunctive oversight and toward the more limited avenues of contract-based claims—while also warning district courts not to collapse standing analysis into premature merits determinations.