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Barton v. District of Columbia

August 19, 2002


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Document Nos.: 15, 20



C. Peyton Barton, Jr. and Maine Avenue Seafood, Inc. ("the plaintiffs") move the court for a preliminary injunction to prevent the District of Columbia and its agents ("the District defendants" or "the D.C. defendants") from entering into or awarding any lease contracts for a waterside or land-based slot at the Municipal Fish Wharf ("the Wharf"). *fn1 Mr. Barton, a commercial tenant, runs a seafood concession out of the Fish Market Building at the Wharf, located at 1100 Maine Avenue, S.W., on the Southwest D.C. waterfront. He now asks the court to prevent the District defendants from entering into any 30-year leases with other commercial seafood vendors at the Wharf ("the Wharf defendants" *fn2 ).

Specifically, the plaintiffs allege that by reaching agreement on these leases with the Wharf defendants, the D.C. defendants violated the D.C. Procurement Practices Act, de facto prevented the plaintiffs from making a lease contract, violated the Equal Protection clause, violated the plaintiffs' rights granted by Congress's Fiscal Year 1999 Appropriations law, and engaged in reverse discrimination. The defendants counter by noting that the plaintiffs have presented weak arguments on all four prongs of the standard preliminary-injunction test (see Section III.A. infra). Accordingly, they argue that the court should deny the plaintiffs' motion for injunctive relief.

For the reasons that follow, the court will deny the plaintiffs' motion for a preliminary injunction.


C. Peyton Barton, Jr. is the sole stockholder of Maine Avenue Seafood, Inc. ("MAS"), a business that sells cooked and fresh seafood at the Wharf, located at 1100 Maine Avenue, S.W., on the Southwest waterfront. See First Am. Compl. ("Compl.") at 3. Mr. Barton leases a land-based location from the District at the Wharf consisting of a small building (the Fish Market Building) and parking area. See id. at 4. The United States government owns the Wharf, and the District manages the area. See id.

In 1996, Mr. Barton purchased the assets of Morgan Seafood, a bankrupt concessionaire, resulting in the assignment to him of two lease agreements for a land- based location at the Wharf. See Mot. for P.I. at 4. Mr. Barton states that the District recognized the assignments. See id.

The assignments Mr. Barton received were part of a joint lease with other Wharf vendors. See Wharf Defs.' Opp'n to Mot. for P.I. ("Wharf Defs.' Opp'n") at 5. Since the joint lease expired in 1996, all of the concessionaires - including the plaintiffs -have operated in their same locations under month-to-month leases. See id. In their opposition, the Wharf defendants say they have been negotiating for a new long-term lease with the District since 1995, and that they focused their negotiations on the prospect of a new 30-year lease in late 1998. See id.

The record in this case exposes a long history of hostility between the plaintiffs and some of the Wharf defendants. Mr. Barton believes the animosity started in 1996 when he successfully bid to acquire the assets of Morgan Seafood, beating out Mr. Billy White, one of the Wharf defendants and a co-owner of B.R.W., Inc. Mr. Barton's First Amended Complaint underscores the history of ill will at the Wharf:

There are 16 commercial vending locations at the Wharf, each of which is properly considered a concession granted by the District. These concessions are jealously guarded by the current vendors, and in recent years there has been a consolidation of ownership of those businesses. Today, defendant B.R.W., Inc. ("BRW") is by far the largest and most powerful concessionaire .... The BRW defendants, who have long boasted of their political and economic prowess, are known for their predatory and aggressive competitive practices in this government- controlled outdoor market place .... There are but five concessionaires: the BRW defendants; the Evans Family; an unrelated family with the name Evans; Edwards and Jones; and Barton.

Barton became a concessionaire in 1996 when he beat out the BRW defendants for purchase of a defunct Wharf concessionaire. Ever since that time, the BRW defendants have tried to put Barton out of business, no holds barred, in order to monopolize the fried cooked seafood market at the Wharf where Barton is their only competitor. Compl. at 4-5.

In addition, the plaintiffs mention the Wharf defendants' "hatred for Barton" as a motivating factor in their alleged desire to destroy Mr. Barton's business. See Mot. for P.I. at 2.

The Wharf defendants respond in kind. Indeed, they open the "Factual Background" section of their opposition to the plaintiffs' motion with the following salvo: "This is not the first frivolous position that Barton has taken in this Court with regard to a Wharf lease between the District and the Wharf Defendants." Wharf Defs.' Opp'n to Mot. for P.I. at 4.

The roots of the current dispute can be traced to a provision in the Congressional Appropriations Act for Fiscal Year 1999. See Pub. L. No. 105-277, 112 Stat. 2681 (1998) ("FY99 Act"). The FY99 Act required the District to negotiate new 30-year leases with the vendors currently leasing concession slots at the Wharf. See Mot. for P.I. at 5; Wharf Defs.' Opp'n at 7. Accordingly, the plaintiffs believe that "Barton was one of the intended beneficiaries of that legislation." Mot. for P.I. at 5.

In the FY99 Act, Congress also appropriated $3 million for improvements to the District's Southwest Waterfront area, which encompasses the Wharf, on the condition that the District enter into 30-year leases with existing lessees. See Wharf Defs.' Opp'n at 7, n.4. The FY99 Act directed the Army Corps of Engineers to develop a plan for how best to spend the $3 million to improve the Wharf. See id.; District Defs.' Opp'n at 4-5.

Importantly, though, the Congressional Appropriations Act for Fiscal Year 2000, Pub. L. No. 106-113, 113 Stat. 1501 (1999) ("FY00 Act"), changed the terms of the Southwest Waterfront area project, eliminating the requirement that the District execute long-term leases with all existing lessees (with the exception of lessees of "the Marina," which does not include the Municipal Fish Wharf). See District Defs.' Opp'n at 5, Ex. A6; Pls.' Reply to District Defs.' Opp'n at 10.

The third and final Congressional Appropriations Act that bears on this dispute is the Fiscal Year 2001 Act. See Pub. L. No. 106-522, 114 Stat. 2440 (2000) ("FY01 Act"). Citing section 162 of the FY01 Act, the District defendants note that Congress gave the Mayor of Washington, D.C. "exclusive authority to approve and execute leases" for slots at the Municipal Fish Wharf. See District Defs.' Opp'n at 5. Section 162 provides, in pertinent part:

(a) Exclusive Authority of the Mayor

Notwithstanding section 451 of the District of Columbia Home Rule Act or any other provision of District of Columbia or Federal law to the contrary, the Mayor of the District of Columbia shall have the exclusive authority to approve and execute leases of the Washington Marina and the Washington municipal fish wharf with the existing lessees thereof for an initial term of 30 years, together with such other terms and conditions (including renewal options) as the Mayor deems appropriate. District Defs.' Opp'n at 5 (citing the FY01 Act, § 162).

As discussed below, a principal point of contention between the parties is whether this trilogy of Congressional Appropriations Acts or the D.C. Procurement Practices Act (D.C. Code § 1-1181.1 et seq.) ("PPA") controls the process involving leases for the Wharf. The plaintiffs contend that the District "totally sidestepped" the PPA in making leases with the other Wharf vendors. See Mot. for P.I. at 15. The District defendants counter that the plaintiffs' PPA argument is "flawed" because § 162 of the FY01 Act trumps the PPA and because the PPA does not apply to contracts for leases. See District Defs.' Opp'n at 6.

Meanwhile, in mid-1999, the District accepted the recommendation of the Army Corps of Engineers to demolish the Fish Market Building - occupied by Mr. Barton - as part of the renovation plan. See Wharf Defs.' Opp'n at 7. According to the Wharf defendants, "Not only was the dilapidated structure an eyesore, but it was situated so as to clog pedestrian and vehicular traffic." Id.

The plaintiffs characterize what happened next as follows: The District met and negotiated contracts with all vendors except Barton. From the very outset of the negotiation process, starting in October or November 1998, Barton fulfilled every request the District made of him in the expectation that it would be a period of good faith negotiations. While Barton was led to believe he would be awarded a 30-year contract, that was not in reality what the District had in mind. The record will reflect that the District permitted the entire contracting process to be infected by bitter, hostile and unlawful interference by the BRW and Virgo defendants and their attorneys. Id. (internal citations omitted).

In essence, Mr. Barton claims that the District cut him out of the negotiation process, thereby creating two classes of vendors at the Wharf: Barton, who is not being awarded a contract, and the four other vendors, who are being awarded contracts. See id. at 6. As evidence of the District defendants' distaste for Mr. Barton, the plaintiffs include an affidavit from Mr. Barton stating that defendant Carl Johnson, a Department of Housing and Community Development ("DHCD") official told him, "White ...

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