arguments on these points are persuasive.
In sum, the plaintiffs have not convinced the court at this
point that the PPA applies to the leases at issue in this case.
In addition, even assuming arguendo that the PPA does apply,
the plaintiffs have failed to show that the District defendants
acted in bad faith or that the alleged violations of the PPA
sufficiently taint the lease-negotiation process as to warrant
voiding the leases. Accordingly, the court holds that on their
PPA claim, the plaintiffs have at best a questionable likelihood
of success on the merits.
b. The Plaintiffs' Additional Claims
At this initial stage, the court determines that the
plaintiffs' additional claims lack any likelihood of success on
First, the plaintiffs claim that the District de facto
debarred Mr. Barton or "blacklisted" him. See Mot. for P.I. at
19. The plaintiffs contend that "The District refused to
negotiate with Barton in good faith. Barton was treated
differently and unfairly from the outset." Id. The court sees
no evidence to support these claims. As noted above, the District
began negotiations with Mr. Barton, an existing lessee, in late
1998, just as it did with the other vendors, and gave Mr. Barton
several opportunities to accept the draft 30-year lease.
Second, the court sees little, if any, merit in the plaintiffs'
claims of equal protection and due process clause violations,
reverse discrimination, or a violation of 42 U.S.C. § 1983. For
example, section 1983 allows courts to grant relief when a state
or local official acting "under color of" state law violates a
person's federally protected rights. See, e.g., Roe v. Wade,
410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Brown v.
Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873
(1954). But the plaintiffs have failed to show that any state or
local officials, acting under color of state law, violated their
federally protected rights. In addition, the court concludes that
the plaintiffs' claim of an Equal Protection violation based on a
"class of one" lacks merit in that the plaintiffs have failed to
demonstrate how the District treated them differently from the
other vendors. Finally, for their reverse-discrimination claim,
the plaintiffs rely on the allegation that defendant Johnson, a
DHCD official, told Mr. Barton, "White trash, you are out of
here." See Mot. for P.I. at 26. As despicable and racist as a
comment like this would be, the plaintiffs fail to demonstrate
that in making this alleged comment, defendant Johnson was
"acting under color of" state law or that his personal view
represented the official District view of Mr. Barton.
Lastly, the plaintiffs contend that the District unlawfully
denied Mr. Barton the statutory rights accorded him by the FY99
Act, which supposedly required the District to negotiate a
30-year lease with him. See id. at 25. Even if the FY99 Act
granted the plaintiffs these statutory rights — which the
District defendants dispute, see District Defs.' Opp'n at 10 —
the plaintiffs cannot take refuge in this claim. The simple truth
remains that the District negotiated with Mr. Barton in good
faith, and for a period of about 10 months. As noted above, the
court finds that the District gave the plaintiffs ample
opportunity to sign a 30-year lease for slots 16 and 17 at the
Wharf. Thus, the court rules that the plaintiffs' additional
claims do not even remotely rise to the level of having a
substantial likelihood of success on the merits.
When considering a party's motion for a preliminary injunction,
the court must pay special attention to the first prong of the
injunctive-relief test, for it is particularly important for the
plaintiff to demonstrate a substantial likelihood of success on
the merits. Cf. Benten v. Kessler, 505 U.S. 1084, 1085, 112
S.Ct. 2929, 120 L.Ed.2d 926 (1992) (per curiam); University of
Texas v. Camenisch, 451 U.S. 390, 394, 101 S.Ct. 1830, 68
L.Ed.2d 175 (1981); Doran, 422 U.S. at 934, 95 S.Ct. 2561. If
fails to make this showing, "it would take a very strong showing
with respect to the other preliminary injunction factors to turn
the tide in plaintiff['s] favor." Davenport, 166 F.3d at 367.
In this case, the plaintiffs fail to make this showing on the
other three factors.
2. The Plaintiffs Have Failed to Show that They Would Suffer
The plaintiffs argue that if the court does not issue an
injunction, they will suffer irreparable harm, in that their
business will be destroyed. See Mot. for P.I. at 26. Conceding
that D.C. Circuit law clearly holds that economic loss alone does
not constitute irreparable harm, the plaintiffs contend that in
this case the level of harm "threatens the very existence of
plaintiff's [sic] business." See id. (quoting Wisconsin Gas
Co. v. Federal Energy Regulatory Comm'n, 758 F.2d 669, 674
In response, the District defendants note that the D.C.
Superior Court has stayed Mr. Barton's eviction pending his
appeal to the D.C. Court of Appeals. See District Defs.' Opp'n
at 13. As the District notes, "nothing is imminent in the D.C.
Court of Appeals (or the D.C. Superior Court) vis-à-vis Mr.
Barton's eviction. So the question must be asked: suppose
Plaintiffs' TRO/PI Motion is denied — what would be the effect?
The answer is: there would be no effect." Id. Indeed, the court
agrees there would be little effect. Even after the leases with
the other vendors are executed, "Mr. Barton will still be at the
rental premises, and will still be doing business. Nothing can
happen to Mr. Barton or his leasehold interest while his eviction
case is pending in the D.C. Court of Appeals." Id.
Moreover, the court deems persuasive the District defendants'
argument that the plaintiffs will suffer no irreparable harm,
especially when the District notes that:
Although the Wharf is apparently where Mr. Barton
would (now) like to stay, there is no reason he could
not sell his seafood at some other waterfront, or
non-waterfront, venue in or around the City. No
doubt, he may prefer a waterfront venue, but the
Municipal Fish Wharf is by no means the only
waterfront venue for seafood sales in the Washington,
D.C. area. Simply stated, he would have to lease or
buy a new retail location. This hardly amounts to
Id. at 14. Indeed, the plaintiffs' motion begs the question:
why couldn't they relocate their seafood store to another area?
While the court is aware of the well-known phrase that the
three most important things in real estate are "location,
location, location," the plaintiffs have failed to demonstrate
that their business could not survive, or even thrive, somewhere
else in the District. In fact, the plaintiffs do not even address
this point in either their motion or in their two reply briefs.
In the worst-case scenario, the plaintiffs might face a
transition or modification of their business. This, however, does
not amount to a destruction of their business. In fact, even
assuming the plaintiffs had to move their store to another, less
profitable venue, this move would constitute merely an economic
loss for the plaintiffs. And by the plaintiffs' own admission,
economic loss alone does not rise to the level required to show
Moreover, "[a] preliminary injunction movant does not satisfy
the irreparable harm criterion when the alleged harm is
self-inflicted." Fiba Leasing Co., Inc. v. Airdyne Indus.,
Inc., 826 F. Supp. 38, 39 (D.Mass. 1993); see also San Francisco
Real Estate Investors v. Real Estate Investment Trust,
692 F.2d 814, 818 (1st Cir. 1982). Although the defendants omit this
argument, the court raises it on its own because the plaintiffs
in this case seem to have suffered the most from their own
actions or inactions. As noted above, the plaintiffs, who were
month-to-month tenants throughout the negotiation process — or
their prior counsel appear to have
made a gross miscalculation by not accepting the District's
good-faith offer to sign a contract for a 30-year lease.
In sum, the plaintiffs do not make a strong showing on the
3. Harm to the Defendants from a Preliminary Injunction
While this factor does not cut strongly in either direction,
the court determines that it leans toward the defendants. If the
court were to grant the plaintiffs' motion for a preliminary
injunction, the District defendants contend they would be harmed
in two ways: (1) they would be unable to implement the
improvements Congress intended to occur via its $3-million
renovation plan; and (2) the District's long-term leases with the
other Wharf lessees would be "in limbo, indefinitely," depriving
the District of the rents negotiated in the new leases. See
District Defs.' Opp'n at 16. The court rules that these are valid
4. Public interest
The plaintiffs' anemic theory on this prong essentially amounts
to an argument that the public interest "will best be served by
competition, and not the monopoly which will result from the
unlawful grant of the government contracts for the Wharf." Mot.
for P.I. at 30. As noted above, the court finds no reason to
believe that the District granted these contracts unlawfully, and
sees no evidence of a monopoly here. On the public-interest
prong, the defendants make a significantly stronger case. First,
the District defendants contend persuasively that the public
interest would be best served by permitting the $3-million
renovation plan anticipated by Congress to take effect, thus
resulting in marked improvements to the Wharf. See District
Defs.' Opp'n at 17.
Furthermore, the Wharf defendants point out that the District
would miss out on additional rental income if slots 16, 17, 18,
and 19 remain empty. See Wharf Defs.' Opp'n at 25. In addition,
"under the terms of the leases, the Wharf Defendants are to pay
significantly more in rental income for their current premises
than they have previously." See id. The plaintiffs do not
dispute any of these points. Finally, the Wharf defendants argue
that the public would benefit from having a greater selection of
seafood from businesses that would be operating from slots 16,
17, 18, and 19. The court agrees, and concludes that the
public-interest prong tilts heavily toward the defendants.
In sum, because the plaintiffs have at best only a questionable
likelihood of success on the merits, and because the other three
prongs of the injunctive-relief test come down in the defendants'
favor, the court will deny the plaintiffs' motion for a
For all of these reasons, the court denies the plaintiffs'
motion for a preliminary injunction. An order directing the
parties in a fashion consistent with this Memorandum Opinion is
separately and contemporaneously issued this 28 day of February,