Case 1:18-cv-00003-JEB Document 6-1 Filed 03/01/18 Page 1 of 17

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

PETWORTH HOLDINGS LLC, et al.,

Plaintiffs,

v. Civil Action No. 18-003 (JEB)

MURIEL BOWSER, et al.,

Defendants.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF

DEFENDANTS’ MOTION TO DISMISS

INTRODUCTION

Since 1976, when the inaugural District of Columbia Council passed the Retail

Service Station Act (RSSA), the District of Columbia (the District) has had a

moratorium on the conversion of full-service gas stations to limited-service gas

stations. Against this backdrop, in 2005, plaintiff Petworth Holdings LLC, co-owned

by plaintiff John C. Formant, purchased land on which a full-service gas station

operated, admittedly never intending to allow the station to operate but, rather, with

the intent to develop the property. Petworth Holdings delayed and then abandoned

its development plans. And, in 2014, when it tried to sell the property, Petworth

Holdings complains some potential buyers did not want to deal with the effects of the

moratorium.

Based on these factual allegations, plaintiffs seek declaratory and injunctive

relief because the RSSA moratorium violates the Takings Clause of the Fifth

Amendment and the ban against slavery and involuntary servitude in the Thirteenth
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Amendment. Plaintiffs’ claims should fail. First, plaintiffs lack standing because the

RSSA moratorium only applies to owners or operators of gas stations, not landlords

like plaintiffs, and their alleged injuries are too speculative. Second, plaintiffs have

not alleged a taking because they lack a requisite economic impact traceable to the

District and because the moratorium was a reasonable means of preserving full-

service gas stations in the District. Third, there is no private right of action under the

Thirteenth Amendment and, in any event, the Thirteenth Amendment does not apply

to the facts presented here.

FACTUAL BACKGROUND

In its first session, the inaugural District of Columbia Council passed the

Retail Service Station Act of 1976 (RSSA) on December 7, 1976. It was enacted on

February 11, 1977, and took effect on April 11, 1977, as D.C. Law 1-123. See D.C.

Law 1-123 at 1, 23 D.C. Reg. 5900 (Feb. 11, 1977), also available at

https://code.dccouncil.us/dc/council/laws/docs/1-123.pdf (last accessed Feb. 15, 2018).

Among its provisions, the RSSA, as originally enacted and today, includes “a

moratorium on conversions” of full-service gas stations. Id. at 2 (Section 5-301, now

codified as D.C. Code § 36-304.01); see also Ex. 1 (Committee Report on the

Moratorium on Retail Service Station Conversions Act of 1979) at 2 (July 17, 1979)

(describing the Act’s “main purpose” as “to stop the growing trend of converting

stations to non-full service stations….”). In addition to other restrictions, the

moratorium prohibits gas station operators from “structurally alter[ing]” or

“modif[ying]” full-service stations. Id. The RSSA allows the Mayor to grant

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exemptions from the moratorium based on recommendations from the Gas Station

Advisory Board (GSAB).

The moratorium was originally set to expire on January 1, 1979. D.C. Law 1-

123 at 1, 23 D.C. Reg. 5900 (Feb. 11, 1977). That did not happen. The RSSA has been

amended to extend the moratorium ten times. See, e.g., D.C. Law 3-44 § 2(c)(2), 26

D.C. Reg. 2093 (through October 1, 1981); D.C. Law 7-148, § 2(c) 35 D.C. Reg. 5427

(through October 1, 1991); D.C. Law 13-130, § 2, 47 D.C. Reg. 2688 (through October

1, 2005) (June 24, 2000); Ex. 2 (Committee Report on Retail Service Station

Amendment Act of 2004) at 2 (since enactment of the moratorium “the Council has

adopted nine extensions”). On January 4, 2005, the Council passed an amendment

that removed the end date entirely, making the moratorium permanent. D.C. Law

15-297 § 2(d), 52 D.C. Reg. 1485 (Feb. 18, 2005).

In 2005, after the RSSA amendment that made the moratorium permanent,

plaintiff Petworth Holdings LLC purchased Lot 40 in Square 2910 at 4140 Georgia

Avenue N.W., Washington, D.C. 20011, from DAG Petroleum Suppliers LLC (DAG),

which owned and operated a full-service gas station there. Compl. ¶¶ 4-5, 14.

Petworth Holdings purchased the property “never intend[ing] to operate a station but

rather to develop the property[,]” although it immediately leased the property back

to DAG for continued operation of the full-service gas station. Id. ¶¶ 6, 15.

Plaintiffs complain that the GSAB has not been fully constituted for some time

(Id. ¶ 29, quoting Ex. C (“‘no members have been appointed to the [GSAB] for 11

years’”)), but the Complaint includes no allegation plaintiffs ever sought an

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exemption from the GSAB. In 2014, Petworth Holdings began trying to sell the

property. Id. ¶ 17. That same year, the Council amended the RSSA again. D.C. Law

20-271, 62 D.C. Reg. 1884 (passed Oct. 24, 2014; effective May 2, 2015). Although the

RSSA already prohibited gas station operators from “structurally alter[ing]” or

“modif[ying]” full-service stations or “otherwise convert[ing],” these amendments

added “discontinued” before “structurally altered” and added “or into any other use”

at the end of the list of variants into which conversion was prohibited. Plaintiffs claim

that potential buyers did not want to deal with maintaining a full-service gas station

on the property and that the 2014-2015 amendments “substantially hindered”

plaintiffs’ efforts to sell the property. Compl. ¶¶ 35-36.

Plaintiffs now sue the District of Columbia (the District) by bringing this action

against Mayor Muriel E. Bowser, Attorney General Karl A. Racine, Department of

Energy and Environment (DOEE) Director Tommy C. Wells, all in their official

capacities, and the GSAB.

STANDARD OF REVIEW

I. Motion to Dismiss for Lack of Standing

To survive a Federal Rule of Civil Procedure 12(b)(1) motion to dismiss for lack

of standing, plaintiffs “must show an injury in fact that is fairly traceable to the

defendant’s conduct and that is likely to be redressed by a favorable judicial decision.”

Bank of Am. Corp. v. City of Miami, 137 S. Ct. 1296 (2017) (quotations omitted);

accord Food & Water Watch, Inc. v. Vilsack, 808 F.3d 905, 913 (D.C. Cir. 2015). “The

plaintiff bears the burden of invoking the court’s subject matter jurisdiction,

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including establishing the elements of standing.” Arpaio v. Obama, 797 F.3d 11, 19

(D.C. Cir. 2015) (quotation omitted).

In considering a motion to dismiss under Rule 12(b)(1), the Court must “accept

facts alleged in the complaint as true and draw all reasonable inferences from those

facts in the plaintiffs’ favor.” Humane Soc’y of the United States v. Vilsack, 797 F.3d

4, 8 (D.C. Cir. 2015). However, the Court need “not assume the truth of legal

conclusions, nor … accept inferences that are unsupported by the facts set out in the

complaint. Furthermore, when considering any chain of allegations for standing

purposes, [it] may reject as overly speculative those links which are predictions of

future events.” Food & Water Watch, 808 F.3d at 913 (alterations, citations, internal

quotation marks omitted). The Court “may take judicial notice in ruling on a motion

to dismiss” of relevant public records attached to the motion. Whiting v. AARP, 637

F.3d 355, 364 (D.C. Cir. 2011); Fed. R. Evid. 201.

II. Motion to Dismiss for Failure to State a Claim

To survive a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss, “a

complaint must contain sufficient factual matter, accepted as true, to ‘state a claim

to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)

(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially

plausible “when the plaintiff pleads factual content that allows the court to draw [a]

reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 556). “While legal conclusions can

provide the framework of a complaint, they must be supported by factual allegations.”

Iqbal, 556 U.S. at 679. “[A] complaint [does not] suffice if it tenders ‘naked

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assertion[s]’ devoid of ‘further factual enhancement.’” Id. at 678 (quoting Twombly,

550 U.S. at 557).

In reviewing a 12(b)(6) motion, the Court “may consider ... the facts alleged in

the complaint, any documents either attached to or incorporated in the complaint,

and matters of which [the Court] may take judicial notice.” E.E.O.C. v. St. Francis

Xavier Parochial Sch., 117 F.3d 621, 624 (D.C. Cir. 1997).

[A]lthough in considering the claims dismissed pursuant to Rule

12(b)(6), we must treat the complaint’s factual allegations as true and
must grant plaintiff the benefit of all reasonable inferences from the
facts alleged, we are not bound to accept as true a legal conclusion
couched as a factual allegation or to accept inferences drawn by
plaintiffs if such inferences are unsupported by the facts set out in the
complaint….

Trudeau v. FTC, 456 F.3d 178, 193 (D.C. Cir. 2006).

ARGUMENT

I. Plaintiffs Lack Standing to Maintain this Action Because They Are Not Subject
to the RSSA and Have Not Suffered Injury-in-Fact.

A. The RSSA Moratorium Does Not Apply to Plaintiffs Who Are Not
Owners or Operators of the Gas Station.

A plaintiff “has no standing to complain about provisions that do not apply to

him….” United States v. Riley, 376 F.3d 1160, 1165 (D.C. Cir. 2004); accord PeTA v.

Rasmussen, 298 F.3d 1198, 1203 (10th Cir. 2002); see also Goldhamer v. Nagode, 621

F.3d 581, 587-88 (7th Cir. 2010) (finding no standing for a facial challenge even after

plaintiffs had been, mistakenly, arrested under an inapplicable statue).

The Act only applies to a “retail service station” and the “owner or operator of

a retail service station.” See, e.g., D.C. Code § 36-304.01(c), (g)(2), (3), and (j). Even

subsection (c), which includes the broadest scope of affected parties, does not go

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beyond “any person … who, in any manner, controls the operation of any such retail

service station….” D.C. Code § 36-304.01(c) (emphasis added). Nor does the alleged

absence of a GSAB apply to plaintiffs because petitions for exemption to the GSAB

must be filed by “a distributor and a retail dealer,” and plaintiffs are neither. D.C.

Code § 36-304.01(d)(1)(A).

Plaintiffs admit that they do not fall into any of these categories. See Compl.

¶ 34 and Ex. C at 4 (“The law does not appear to impose any similar penalty on a

property owner that does not actually own or operate a retail station.”). They attempt

to gloss over this important distinction by claiming that Petworth Holdings

“purchased the Property and Station.” Compl. ¶ 6. But Petworth Holdings’s

ownership is limited to the property. Id. ¶ 4. It is DAG that owns and operates the

service station. Compl. ¶¶ 5, 14. Because the Act does not apply to them, plaintiffs

lack standing to challenge the constitutionality of the RSSA moratorium.

B. Plaintiffs Also Lack Standing Because They Cannot Allege Any Actual
or Imminent Injury Traceable to the District of Columbia.

The injury-in-fact required for standing must be “actual or imminent, not

conjectural or hypothetical.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992)

(quotations omitted). Further, there must be a “substantial probability” that the

complaint satisfies each element of standing. Sierra Club v. FERC, 827 F.3d 59, 65

(D.C. Cir. 2016).

1. Plaintiffs Claim of Potential DOEE Enforcement is Not a

Sufficient Injury.

Plaintiffs complain that the RSSA “purports to grant Defendant DOEE the

right to enforce the Law’s provisions by levying fines against property owners for

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exercising their property rights.” Compl. ¶ 52. First, this is a misreading of the RSSA,

which does not mention property owners at all. See generally D.C. Code § 36-304.01.

As explained in Subsection I.A above, the RSSA only allows penalties to be assessed

against an “owner or operator of a retail service station.” D.C. Code § 36-304.01(g)(2)-

(3). Plaintiffs do not fall into either category.

Second, DOEE has not taken any action against either plaintiff. See generally

Compl. Plaintiffs do not even allege that DOEE has taken the first step in the civil

enforcement process1 of issuing a Notice of Infraction pursuant to D.C. Code § 2-

1802.01. If the service station were to be improperly converted, DOEE might elect not

to pursue civil enforcement; it has repeatedly declined to impose fines for gas station

conversions, including in 2016. See Ex. 2 (2004 Committee Report) at 3, 4, (between

1991 and 2004, 12 full-service gas stations received approval to convert, and five did

so without approval).2

1DOEE is “the agency charged with the civil enforcement” of D.C. Code § 36-
304.01, which shall be conducted pursuant to the Civil Infractions Act and
adjudicated by the Office of Administrative Hearings. D.C. Code § 36-304.01(i).
2 The “Embassy Gulf Service Station” was a full-service Sunoco station when
its landlord terminated its lease in 2016. Andrew Giambrone, Gas Station at Historic
Dupont Circle Site Slated for Redevelopment Closes, WASHINGTON CITY PAPER (Jan.
5., 2017), available at https://www.washingtoncitypaper.com/news/housing-
complex/blog/20848150/gas-station-at-historic-dupont-circle-site-slated-for-
redevelopment-closes (last accessed Feb. 16, 2018). The landlord had hopes, just like
plaintiffs, of developing the property. Unlike plaintiffs, however, the landlord
planned continued operation of the full-service gas station. DOEE did not impose
fines for an improper conversion but, rather, issued a permit January 4, 2017, for the
removal of the storage tanks below the site, as mandated by federal environmental
regulations. Ex. 3 (DCRA PIVS screenshot). Ultimately, the plans were scuttled, at
least temporarily, because of a federal law, the National Historic Preservation Act of
1966, 80 Stat. 915 (Oct. 15, 1966). Andrew Giambrone, Developer Postpones Mixed-
Use Project at Historic Dupont Circle Site, WASHINGTON CITY PAPER (Nov. 29, 2016),

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Plaintiffs’ alleged injury relating to potential DOEE enforcement resides in a

single paragraph in the Complaint that describes, incorrectly, the scope of DOEE’s

enforcement power. See Compl. ¶ 52. Plaintiffs have not alleged that the imposition

of a penalty is likely, let alone a substantial probability. Rather, as explained above,

the plain language of the RSSA, DOEE’s many decisions not to enforce discussed

above at 7, including Note 2, and plaintiffs’ allegations suggest it is unlikely. See Food

& Water Watch, 808 F.3d at 913 (the Court “may reject as overly speculative those

links which are predictions of future events”). Plaintiffs’ allegations regarding

potential DOEE enforcement are insufficient under Iqbal and do not satisfy the

injury-in-fact requirements of standing.

2. Plaintiffs’ Alleged Difficulty in Selling the Property Is Not a

Sufficient Pleading of Injury Traceable to the District.

Plaintiffs allege that the RSSA “effectively prohibits Plaintiffs from selling the

Property” because, after the 2014-2015 amendments to the RSSA, their efforts to

“consummate the sale of the Property have been substantially hindered” and

“potential purchasers of the Property have stated that they would not purchase the

Property if they were required to operate a full-service retail service station on the

Property in perpetuity.” Compl. ¶¶ 35–36, 44. But plaintiffs offer no factual

allegations to support their conclusory statement that their efforts were

“substantially hindered.”

available at https://www.washingtoncitypaper.com/news/housing-complex/blog/
20845108/developer-postpones-mixeduse-project-at-historic-dupont-circle-site (last
accessed Feb. 20, 2018).

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In reality, many factors having nothing to do with the RSSA, from plaintiffs’

asking price to interest rates, could have scuttled plaintiffs’ attempts to sell. Other

properties holding full-service gas stations have found prospective buyers who were

aware of the RSSA yet remained interested in purchasing.3 Any difficulties plaintiffs

are having in effecting a sale are more likely traceable to plaintiffs or other factors—

perhaps relating to the price they are asking, for example—than to the District and,

thus, are insufficient to establish standing under Iqbal’s facial plausibility standard.

II. Plaintiffs Fail to State a Takings Claim.

Plaintiffs have not alleged facts sufficient to constitute a regulatory taking. “In

a regulatory takings case, such as this one, the principal focus of inquiry is whether

a regulation reaches a certain magnitude in depriving an owner of the use of

property.” 2910 Ga. Ave. LLC v. District of Columbia, 234 F. Supp. 3d 281, 298

(D.D.C. 2017) (quoting Dist. Intown Props. Ltd. P’ship v. District of Columbia, 198

F.3d 874, 878 (D.C. Cir. 1999)) (internal quotations omitted). “As the ‘party

challenging governmental action as an unconstitutional taking,’ [plaintiffs] bear[ ] a

3 See Mark Lieberman, Prospective buyers eye former Dupont Sunoco site,
CURRENT NEWSPAPERS (May 17, 2017), available at
https://currentnewspapers.com/prospective-buyers-eye-former-dupont-sunoco-site/
(last accessed Feb. 20, 2018) (describing bidding for “Embassy Gulf Station”); see also
Andrew Giambrone, Gas Station at Historic Dupont Circle Site Slated for
Redevelopment Closes, WASHINGTON CITY PAPER (Jan. 5, 2017) (former operator
explaining “I’d love to buy it from them…. It could completely sustain itself.”),
available at https://www.washingtoncitypaper.com/news/housing-complex/blog/
20848150/gas-station-at-historic-dupont-circle-site-slated-for-redevelopment-closes
(last accessed Feb. 23, 2018).

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‘substantial burden.’” Dist. Intown, 198 F.3d at 878 (quoting Eastern Enters. v. Apfel,

524 U.S. 498, 523 (1998)).

The Supreme Court recognizes two tests for a regulatory taking. Government

action constitutes a taking in the “the extraordinary circumstance when no

productive or economically beneficial use of land is permitted.’” Lucas v. S.C. Coastal

Council, 505 U.S. 1003, 1017 (1992)) (emphasis in original). “Anything less than a

‘complete elimination of value,’ or a ‘total loss’…would require the kind of analysis

applied in Penn Central [Transportation Co. v. New York City, 438 U.S. 104, 124

(1978)].” Tahoe-Sierra Pres. Council v. Tahoe Reg’l Planning Agency, 535 U.S. 302,

330 (2002) (quoting Lucas, 505 U.S. at 1019-20 n.8). Because plaintiffs do not allege

the extraordinary circumstance that the property is a “total loss,” the Penn Central

analysis applies here.

The Penn Central analysis relies on three factors: “the regulation’s economic

impact on the claimant, the regulation’s interference with the claimant’s reasonable

investment-backed expectations, and the character of the government action.”

District Intown, 198 F.3d at 878-79 (quoting Penn Central, 438 U.S. at 124); accord

Murr v. Wisconsin, 137 S. Ct. 1933, 1937 (2017). “A central dynamic of the Court’s

regulatory takings jurisprudence, thus, is its flexibility. This is a means to reconcile

two competing objectives central to regulatory takings doctrine: the individual’s right

to retain the interests and exercise the freedoms at the core of private property

ownership, and the government’s power to adjust rights for the public good.” Murr,

137 S. Ct. at 1937 (alterations and quotations omitted).

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A. The 2014-2015 Amendments to the RSSA Did Not Have a Sufficient

Economic Impact.

Diminished speculation or margins of profitability are not a proper basis to

assess adverse economic impact. Indeed, it is “quite simply untenable” that property

owners could establish a taking “simply by showing that they have been denied the

ability to exploit a property interest that they heretofore had believed was available

for development.” Penn Central, 438 U.S. at 130; see also Goldblatt v. Hempstead,

369 U.S. 590, 594 (1962) (no taking found where claimant prohibited from continuing

to operate gravel mining business, but property’s value was not reduced). A “mere

diminution in the value of property, however serious, is insufficient to demonstrate a

taking.” Concrete Pipe & Prods. v. Constr. Laborers Pension Tr., 508 U.S. 602, 645

(1993) (citing cases finding no taking with 75% and 92.5% “diminution in value”); see

also Murr, 137 S. Ct. at 1949 (“even a landowner with 95 percent loss may not

recover”) (citing Lucas, 505 U.S. at 1019 n.8 (1992).

Plaintiffs purchased the land as an “investment.” Compl. ¶ 6. Plaintiffs cannot

make a takings claim merely because they do not now stand to make the profit they

expected. They may simply have made a bad purchase in 2005 or failed to foresee

changes in the economic climate. And plaintiffs have not even alleged a decrease in

property value, let alone a diminution sufficient to sustain a takings claim under the

standard described in Concrete Pipe. That some “potential purchasers of the

Property” might not care to own land on which a full-service gas station operates—

and plaintiffs define neither how many potential purchasers there have been nor how

many made this objection—is immaterial. Compl. ¶ 36. “[T]he substantial burden”

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plaintiffs must satisfy is that the “entire property … no longer provide[s] a reasonable

rate of return given the D.C. regulation. [To wit,] whether the property as a whole

can be operated at a sufficient profit even with the regulation.” Dist. Intown, 198 F.3d

at 884; see Note 3 above. Plaintiffs have not even alleged that the value of the land

has been sufficiently diminished to establish the economic injury necessary to support

a takings claim.

B. The 2014-2015 Amendments to the RSSA Did Not and Could Not Impact
Plaintiffs’ “Reasonable, Investment-Backed Expectations.”

Because plaintiffs should have expected regulation of full-service gas stations

to impact their use of the property, any expectations that they could develop the land

in contravention of the RSSA were unreasonable. A property-owner’s expectations

must be viewed “‘in the context of the underlying regulatory regime.’” 2910 Ga. Ave.

LLC, 234 F. Supp. 3d at 299 (citation omitted). “Businesses that operate in an

industry with a history of regulation have no reasonable expectation that regulation

will not be strengthened to achieve established legislative ends.” District Intown, 198

F.3d at 884.

Here, as explained in Subsection I.A, the RSSA and its 2014-2015 amendments

do not apply to plaintiffs. But even assuming they affected plaintiffs’ property

interests, plaintiffs knew or should have factored extant and likely regulation into

their investment-backed expectations. The RSSA banned their planned development

when they purchased the property in 2005. Gas stations have always been highly

regulated in the District of Columbia and elsewhere in the nation. See, e.g., D.C. Code

§§ 36-301.01 et seq.; Petroleum Marketing Practices Act, June 19, 1978, 92 Stat. 322

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(codified at 15 U.S.C. § 2801 et seq.); Ex. 1 (1979 Committee Report) at 2-3; Ex. 2

(2004 Committee Report) at 3-4, 9; below at 14 (discussing Maryland’s Conversion

Moratorium Law).

Even if plaintiffs hoped or expected the RSSA’s moratorium would lapse, “a

mere unilateral expectation … is not a property interest entitled to protection.”

Webb’s Fabulous Pharmacies, Inc. v. Bechwith, 449 U.S. 155, 161 (1980) (quoted in

In re Health Care Review Inc., Nos. 86-5638, 86-5640, 1986 U.S. App. LEXIS 37315,

at *7 (D.C. Cir. Oct. 24, 1986) (unpublished) and Am. Council of Life Insurers v. D.C.

Health Benefit Exch. Auth., 73 F. Supp. 3d 65, 96 (D.D.C. 2014). Accord CCA Assocs.

v. United States, 667 F.3d 1239, 1247 (Fed. Cir. 2011) (a court should “separate

unreasonable, though subjectively believed, investment backed expectations from

objectively reasonable expectations.”). Any expectations that plaintiffs would be able

to convert the gas station in contravention of the law were unreasonable.

C. The Government’s Action Was a Reasonable Means of Achieving a

Rational Public Goal.

As to the third factor, “character of the government action,” the Council’s

regulation of gas stations is an entirely permissible governmental interest. See Penn

Central, 438 U.S. at 129 (citing cases and emphasizing that “this Court has

recognized, in a number of settings, that States and cities may enact land-use

restrictions or controls to enhance the quality of life …”). The first District Council—

and each subsequent Council that extended the moratorium or made it permanent—

considered the goal of preserving full-service gas stations as important to

Washingtonians and visitors to the city. See, e.g., Ex. 1 (1979 Committee Report) at

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2-3, 14; Ex. 2 (2004 Committee Report) at 3-5, 9. A court should “accord economic

legislation a presumption of constitutionality that can be overcome only if the

challenger establishes that the legislature acted in an arbitrary and irrational way.

Ass’n of Bituminous Contractors v. Apfel, 156 F.3d 1246, 1255 (D.C. Cir. 1998)

(quoting Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976)) (quotation marks

omitted).

The moratorium has long been supported by the people most directly affected,

the “owners and operators” of full-service gas stations. “Experience has shown that

the moratorium on conversions helps the retail service station operator—a very small

business compared with the oil company—have an equal footing in deciding the

future nature of his business operation.” Ex. 2 (2004 Committee Report) at 2, 4. See

also Petroleum Marketing Practices Act, June 19, 1978, 92 Stat. 322 (codified at 15

U.S.C. § 2801 et seq.); Giambrone (Jan. 5, 2017), at 9, (former operator’s dismay at

being shuttered). Similarly, it “benefits District residents by ensuring that they

continue to have access to full automotive services at neighborhood gas stations.” Ex.

2 (2004 Committee Report) at 4. Maryland has a similar law, which was upheld

against claims it violated the Due Process and Equal Protection Clauses. See Sun Oil

Co. v. Goldstein, 453 F. Supp. 787 (D. Md. 1978), aff’d 594 F.2d 859 (4th Cir. 1979).

Given the presumption of constitutionality, there is no reason to doubt the Council

had a rational basis for enacting and extending the moratorium or that the

moratorium was a reasonable means to achieve the public interest in ensuring access

to full-service gas stations.

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III. The Thirteenth Amendment Does Not Apply to This Case.

To have a viable claim under the Thirteenth Amendment, plaintiffs must

allege facts that they were “enslaved or coerced in any way by the defendants.”

Richards v. Duke Univ., 480 F. Supp. 2d 222, 238 (D.D.C. 2007), aff’d No. 07-5119,

2007 U.S. App. LEXIS 30275, at *3 (D.C. Cir. Aug. 27, 2007) (per curiam).

Plaintiffs are mistaken when they claim the RSSA “prohibits Plaintiffs from

ever discontinuing to use the property as a full-service retail service station.” Compl.

¶ 48. In fact, plaintiffs are not currently and never have “use[d] the property as a full-

service retail service station.” Rather, plaintiffs continue to use it as a rental

property, collecting rent from DAG. Compl. ¶¶ 5, 14. Plaintiffs have not and cannot

allege that the District has “enslaved or coerced” them.4

CONCLUSION

For the foregoing reasons, the Court should grant the District’s Motion to

Dismiss the Complaint, with prejudice.

Dated: March 1, 2018. Respectfully submitted,

KARL A. RACINE
Attorney General for the District of Columbia

CHAD COPELAND
Acting Deputy Attorney General
Public Interest Division

/s/ Toni Michelle Jackson

TONI MICHELLE JACKSON, Bar No. 453765
Chief, Equity Section

4 See above, discussion of Embassy Service Station at Note 2 (full-service

station was shuttered and neither the owner of the land nor the operator of the station
was assessed any penalty under the RSSA).

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/s/ Conrad Z. Risher

CONRAD Z. RISHER, Bar No. 1044678
ESTHER YONG MCGRAW, Bar No. 988479
Assistant Attorneys General
441 Fourth Street, N.W., Sixth Floor South
Washington, D.C. 20001
(202) 442-5868
(202) 741-0557 (fax)
conrad.risher@dc.gov

Counsel for Defendants Mayor Muriel E. Bowser,

Attorney General Karl A. Racine, District
Department of Energy and Environment
Director Tommy C. Wells, and the Gas Station
Advisory Board

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