SUPERIOR COURT OF THE DISTRICT OF COLUMBIA

CIVIL DIVISION

DYLAN CARRAGHER,

Plaintiff, Case No. 2019 CA 006109 B

v. Judge John M. Campbell

DISTRICT OF COLUMBIA, Next Event: Status Conference

Oct. 1, 2019, 10:00 a.m.

Defendant.

DEFENDANT DISTRICT OF COLUMBIA’S OPPOSITION TO

PLAINTIFF’S MOTION FOR A PRELIMINARY INJUNCTION

INTRODUCTION

Plaintiff Dylan Carragher seeks to enjoin an Act of the D.C. Council

authorizing the Office of Chief Financial Officer (OCFO) to contract with Intralot,

Inc. (Intralot) to provide sports wagering, lottery gaming systems, and related

services (the Contract). Without basis, plaintiff alleges that The Sports Wagering

Procurement Practices Reform Exemption Act of 2019 (Exemption Act), which

exempted the Contract from all but a select part of the District of Columbia’s

procurement law (the Procurement Practices Reform Act of 2010, D.C. Code § 2-

301.01, et seq. (PPRA)), violates Section 424b of the District of Columbia Self-

Government and Governmental Reorganization Act (Home Rule Act) that governs the

authority of OFCO. See Pub. L. No. 93-198, 87 Stat. 774 (1973) (codified at D.C. Code

§ 1-201.01, et seq.). He also alleges that OCFO’s award of the Contract to Intralot
pursuant to the Exemption Act violates the PPRA and Section 424b of the Home Rule

Act.

This Court should deny the requested preliminary injunction because plaintiff

falls far short of proving an entitlement to such extraordinary relief. He is unlikely

to prevail on the merits because he fails to state a viable or convincing claim for

invalidating the Exemption Act. The D.C. Council’s broad legislative authority under

the Home Rule Act extends to amending its procurement laws, and therefore it is

plainly permitted to amend that law as it sees fit to, among other items, authorize

award of a contract outside of the source-selection methods specified in the PPRA.

That is all that the Council did here. Because Section 424b merely subjects OCFO to

the PPRA, the Exemption Act does not in any way run afoul of the Home Rule Act.

Even if plaintiff could somehow demonstrate a likelihood of success on the

merits, he cannot satisfy the other requirements for obtaining preliminary injunctive

relief. Most significantly, plaintiff has not established an imminent risk of irreparable

harm because he has not alleged that he could satisfy the requirements of the

Contract, nor can plaintiff demonstrate taxpayer injury or a violation of the law.

Moreover, the balance of the equities and public interest weigh in favor of the District

of Columbia (the District) because enjoining the District’s performance under the

Contract will cause the District to lose millions of dollars in revenue, while plaintiff’s

purported harm is, at best, speculative. The Court should deny plaintiff’s motion for

a preliminary injunction.

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 BACKGROUND

The “paramount purpose of the Home Rule Act” is “to grant the inhabitants of

the District of Columbia powers of local self-government.” Price v. District of

Columbia Bd. of Ethics and Gov’t Accountability, 212 A.3d 841, 845 (D.C. 2019). “Title

IV of the Home Rule Act sets out the District of Columbia Charter, which establishes

the organizational structure of the District government.” Jackson v. D.C. Bd. of

Elections & Ethics, 999 A.2d 89, 94-95 (D.C. 2010). To fulfill the Home Rule Act’s

paramount purpose, the Charter grants “broad legislative powers” to the Council of

the District of Columbia. Price, 212 A.3d at 845.

In 1995, Congress created the position of the Chief Financial Officer through

the District of Columbia Financial Responsibility and Management Assistance Act of

1995, Abadie v. D.C. Contract Appeals Bd., 843 A.2d 738, 741 (D.C. 2004) (citing Pub.

L. 104-8; 109 Stat. 97, 98 (1995)), and in 2005, transferred additional duties to OCFO,

including oversight of the D.C. Lottery. 2005 District of Columbia Omnibus

Authorization Act (Authorization Act), see D.C. Code § 36-601.13. It also added

Section 424b to the Home Rule Act, which states:

The Chief Financial Officer shall carry out procurement of

goods and services for the Office of the Chief Financial
Officer through a procurement office or division which shall
operate independently of, and shall not be governed by, the
Office of the Contracting and Procurement established
under the District of Columbia Procurement Practices Act
of 1986 or any successor office, except the provisions
applicable under such Act to procurement carried out by
the Chief Procurement Officer established by section 105
of such Act or any successor office shall apply with respect
to the procurement carried out by the Chief Financial
Officer’s procurement office or division.

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120 Stat. 2019.

On March 30, 2010, OCFO entered into Contract No. CFOPD-10-C-038 with

Intralot for the provision of lottery services to assist the District in generating

revenue. Contract No. CFOPD-10-C-038, Ex. 1. After several modifications, the

contract was scheduled to expire on September 29, 2019.

Meanwhile, on January 23, 2019, the Council passed the Sports Wagering

Lottery Amendment Act of 2018 that now authorized sports wagering in the District

by operators who would be licensed by the new Office of Lottery and Gaming. D.C.

Law 22-312, 66 D.C. Reg. 5807 (Lottery Amendment Act). Among many items, the

Lottery Amendment Act provided for the lottery office itself to offer sports wagering,

including mobile and online transactions. D.C. Law 22-312. Then, on February 19,

2019, the Council passed the Exemption Act, D.C. Law 23-1; 66 DCR 5539 (becoming

effective on April 18, 2019), which exempted “the initial procurement … entered into

in connection with” the Lottery Amendment Act, from the requirements of the PPRA,

including its source selection requirements. Id.; see D.C. Code § 2-354.01. Under that

authority, OCFO proposed to enter into a new separate contract with Intralot for both

lottery and sports wagering services for a five-year period, effective July 16, 2019,

and submitted Contract No. CFOPD-19-C-41 (the Contract) to the Council on June

10, 2019 for approval by resolution. See CFO Jeffrey S. DeWitt June 10, 2019 Letter

to the Honorable Phil Mendelson, Ex. 2. The Council passed a resolution approving

the Contract on July 9, 2019. Council Resolution R23-0177, Ex. 3.

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 More than two months later, on September 17, 2019, plaintiff sued the District

for declaratory and emergency injunctive relief, seeking to enjoin the District from

performing under the Contract. Plaintiff alleges that the Exemption Act violates

Section 424b of the Home Rule Act (Count I). He also alleges that OCFO’s award of

the Contract to Intralot violated the PPRA and Section 424b of the Home Rule Act

(Count II). Plaintiff separately moved for a temporary restraining order and a

preliminary injunction on September 24, 2019.

On September 26, 2019, before the District could submit a written opposition,

the Honorable Joan Zeldon granted plaintiff’s motion for a temporary restraining

order, finding that:

(1) There is a substantial likelihood that Plaintiff will

succeed on the merits in demonstrating Defendant, in
enacting the … Exemption Act … violated D.C. Home Rule
Act, Section 424b, codified as D.C. Code § 1-204.26; (2)
There would be irreparable harm to the Plaintiff and other
District of Columbia taxpayers if the Exemption Act were
ultimately found to be void and public funds were owed for
services performed pursuant to the Act; (3) The public
interest is served by requiring the defendant to comply
with its own Home Rule Act; [and] (4) The balance of the
harms weighs in favor of granting the TRO, as delay caused
to the defendant is outweighed by the aforementioned
harm to the Plaintiff and District of Columbia taxpayers.

(footnote omitted). On September 27, 2019, OCFO issued a stop-work order on

Contract No. CFOPD-19-C-041. Ex. 4 (Decl. of Beth Bresnahan (Sept. 30, 2019)).

LEGAL STANDARD

Preliminary injunctive relief may be awarded only when a plaintiff “clearly

demonstrate[s]” each prong of a four-part test: (1) that there is a substantial likelihood

5
of success on the merits; (2) that there is an imminent threat of irreparable harm should

the relief be denied; (3) that more harm will result to plaintiff from the denial of the

injunction than will result to the defendant from its grant; and (4) that the public

interest will not be disserved by the issuance of the requested order. Akassy v.

William Penn Apartments, L.P., 891 A.2d 291, 309 (D.C. 2006) (citing In re Antioch

Univ., 418 A.2d 105, 109 (D.C. 1980)); Zirkle v. District of Columbia, 830 A.2d 1250,

1255–56 (D.C. 2003); District of Columbia v. Eastern Trans-Waste of Md., Inc., 758

A.2d 1, 14 (D.C. 2000). The latter two factors merge when the District is opposing an

injunction. Nken v. Holder, 556 U.S. 418, 435 (2009).

ARGUMENT

I. Plaintiff Is Not Likely to Succeed on the Merits of His Claims.

A. The Exemption Act Is A Valid Exercise of the D.C. Council’s Legislative

Authority and Does Not Conflict With the Home Rule Act.

Plaintiff’s challenge to the Exemption Act fails under basic principles of

statutory construction. Following these principles, the Court should “look to the plain

meaning of the statute first, construing words according to their ordinary meaning.”

Abadie v. D.C. Contract Appeals Bd., 843 A.2d 738, 742 (D.C. 2004). “The literal

words of [a] statute, however, are not the sole index to legislative intent, but rather,

are to be read in the light of the statute taken as a whole, and are to be given a

sensible construction and one that would not work an obvious injustice.” Id. (quoting

District of Columbia v. Gallagher, 734 A.2d 1087, 1091 (D.C. 1999)) (other citation

omitted). In addition, “‘a court may refuse to adhere strictly to the plain wording of a

statute in order to effectuate the legislative purpose, as determined by a reading of

6
the legislative history or by an examination of the statute as a whole.’” Id. (quoting

Carter v. State Farm Mut. Auto. Ins. Co., 808 A.2d 466 (D.C. 2002)).

1. The Plain Language of Section 424b Does Not Preclude the D.C.
Council from Exercising its Broad Legislative Authority to Enact
the Exemption Act.

The District did not violate Section 424b of the Home Rule Act by passing the

Exemption Act, Pl.’s Mot. at 14–15, because the D.C. Council’s broad legislative

authority, as well as the plain language and legislative history of Section 424b of the

Home Rule Act, establish that the Exemption Act was a lawful exercise of the

Council’s authority.

First, “[a]lthough subject to congressional review, the Council’s powers of

ordinary legislation are broad,” Convention Center Referendum Committee v.

District of Columbia Bd. of Election, 441 A.2d 889, 903 (D.C. 1981), and include the

authority to modify the District’s procurement laws, see District of Columbia v. Group

Ins. Admin., 633 A.2d 2 (D.C. 1993) (“The Procurement Practices Act [of 1986 (PPA)]

was enacted by the Council, not initiated by Congress”). Section 424b of the Home

Rule Act is not a restraint on the Council’s otherwise broad authority to modify the

District’s procurement laws pertaining to OCFO. Instead, Section 424b only requires

“that in exercising [its contracting authority], the OCFO adhere to the same statutory

procurement requirements by which the District’s [Chief Procurement Officer (CPO)]

[is] bound.” Bank of Am., N.A. v. District of Columbia, 80 A.3d 650, 670 (D.C. 2013)

(citing § 424b of the Home Rule Act). The CPO was bound by the PPA until it was

repealed by the PPRA, see D.C. Code § 2-352.01(f) (requiring the CPO to adhere to

7
the PPRA), and both statutes contain a provision exempting certain District

government contracts—including those entered by OCFO—from the procurement

rules, as the Council did with the Exemption Act. See D.C. Code § 2-351.05 (c) (PPRA)

(“This chapter, except for § 2-352.02, shall not apply to …”); see also D.C. Code § 2-

354.01 (“Except as otherwise authorized by law, all District government contracts

shall be awarded by …”); D.C. Code § 2-301.04 (2001 ed.). Indeed, the Council has

gone so far as to exempt very specific contracts from the requirements of the PPRA.

See D.C. Code § 2-351.05(c)(15) (directing that the PRRA shall not apply to “[t]he

procurement of services for the … design, development, and construction of a facility

comprised of a fire station and office for the Fire and Emergency Medical Services

Department on real property located at Butternut Street and Georgia Avenue, N.W.,

at the Walter Reed Army Medical Center.”).

Here, the Council was clearly amending the PPRA to once again provide an

exemption for a specific contract from the law’s requirements, and such an

amendment was well within the Council’s broad legislative power to enact

procurement laws in the first instance. See Home Rule Act § 302 (stating that the

legislative power of the District “shall extend to all rightful subjects of legislation

within the District”). While the effect of the amendment for the Contract was to

permit OCFO to act outside of PPRA requirements, it in no way provides OCFO with

authority beyond what Congress envisioned, as the plain language of section 424b of

the Home Rule Act directly tied his or her contracting authority to legislation drafted

by the Council.

8
 In amending the Home Rule Act, Congress is adept at ensuring that rules

pertinent to a District agency remain forever set in time. See, e.g., D.C. Code § 1-

204.96(b) (stating that certain rules and regulations adopted by the Board of

Directors of the District of Columbia Water and Sewer Authority “shall be consistent

with the Water and Sewer Authority Establishment and Department of Public Works

Reorganization Act of 1996, as such Act is in effect as of January 1, 2008.”). But

Congress did not include such a permanent, unalterable requirement in Section 424b

of the Home Rule Act. To the contrary, the inclusion of the phrase “or any successor

office” in Section 424b plainly contemplates that the Council could continue to possess

the authority to amend the procurement rules applicable to OCFO. That is all the

Council did here. Indeed, the OCFO is not even mentioned in the Exemption Act.

The Court of Appeals’ decision in Price proves this point. There, the Court

upheld a provision of the Board of Ethics and Government Accountability

Establishment and Comprehensive Ethics Reform Amendment Act of 2011 which

directed judicial review of ethics rulings from the newly-created Ethics Board to be

first in the Superior Court of the District of Columbia, despite the fact that those

rulings would clearly be arising from “contested cases” and therefore directly

reviewable only by the Court, as required by the D.C. Administrative Procedure Act

(DCAPA). 212 A.3d at 833-44. Moreover, the Court’s review of administrative orders

was directed by Title 11 of the D.C. Code (D.C. Code § 11-722) to be in accordance

with the DCAPA, and the Home Rule Act prohibited the Council from amending Title

11. D.C. Code § 11-722; Home Rule Act § 602(a)(4).

9
 The Price Court nevertheless upheld the law because the Council had the

authority to amend the DCAPA upon which the Court’s direct review jurisdiction

depended, and it found that the Council in fact had implicitly but directly done so by

virtue of the judicial review provision it enacted for ethics rulings. 212 A.3d at 845-

47. Moreover, the Court explained that it construes the Home Rule Act “narrowly to

mean that the Council is precluded from amending Title 11 itself” but that the

Council otherwise “has ‘broad legislative powers” to fulfill the Home Rule Act’s

paramount purpose. Id. at 845 (citing Woodroof v. Cunningham, 147 A.3d 777, 782,

784 (2016); Andrew v. American Imp. Ctr., 110 A.3d 626, 629 (D.C. 2015)) (other

citation omitted). Because the Council did not seek to amend Title 11, “but instead

amended the contested case provision of the DCAPA codified in D.C. Code § 2-

501(a)”—a provision absent from Title 11 itself—the Council did not violate the Home

Rule Act. Id.

Similarly, here, the Council did not purport to amend Section 424b of the Home

Rule Act with the passage of the Exemption Act. Instead, the Council created an

exemption to the requirements of the PPRA for purposes of procurement of sports

wagering services, thereby implicitly but directly amending the PPRA that governs

the OCFO’s contracts, as well as many other departments of the District government.

The Council has full authority to amend the PPRA, and therefore the Exemption Act

does not violate the Home Rule Act, as the OFCO is still bound by the PPRA, as

Congress intended.

10
 Plaintiff interprets Section 424b of the Home Rule Act “to govern[] the

procurement actions of OCFO” absent “an Act of Congress, or alternatively an act of

the City Council, Mayor, and a public referendum.” Pl.’s Mot. at 11. However, as

demonstrated above, this reading of the Home Rule Act does not preclude the Council

from authorizing the Contract to be awarded outside of the PPRA, or OCFO from

performing under the Contract.

Indeed, Plaintiff’s position relies on an illogical construction of Section 424b.

Plaintiff’s theory would essentially freeze the District’s procurement law as of the

date Congress enacted Section 424b (October 16, 2006), but would do so (1) only as

applied to OCFO and no other entity within the District government, and (2)

notwithstanding the Council’s longstanding and recognized authority to otherwise

legislate with respect to procurements. Plaintiff’s reading of Section 424b would also

impair the ability of District residents to exercise their powers of self-government, as

intended by the Home Rule Act. Plaintiff cites no case or other provisions of the Home

Rule Act that support doing so.

2. The Legislative History of Section 424b Supports the Validity of the

Exemption Act.

The legislative history of Section 424b also establishes that Congress’s intent

in referencing the then-existing PPA was to make clear that, although it was granting

OCFO independent procurement authority, it was not exempting OCFO from the

Council’s authority to enact local procurement law. The genesis of Section 424b is

language from the District of Columbia Budget Autonomy Act of 2003 (Budget

Autonomy Act), S. 1267, passed by the United States Senate, and the Authorization

11
Act passed by the United States House of Representatives and ultimately enacted

into law with revisions. The Senate Report on the Budget Autonomy Act stated:

The Office of the Chief Financial Officer’s procurement

practices shall be governed by the provisions of chapter 3
of title 2 of the D.C. Official Code, except that the Office of
the Chief Financial Officer shall maintain a procurement
office or division that shall operate independent of, and
shall not be governed by, the Office of the Contracting and
Procurement, established by section 2-301.05, or its
successor office.

S. Rep. 108-212 at 22 (2003), Ex. 5. The Senate Committee on Governmental Affairs

explained in its Committee Report that this provision was only intended to hold “the

CFO to existing District procurement rules (although the CFO will have its own

procurement office) ….” Id. at 5. In other words, the proposed new section was

intended to “require[] the CFO to follow local procurement laws, but authorized the

CFO to maintain a separate procurement office.” Id. at 8 (emphasis added). Although

the Budget Autonomy Act did not pass in the House of Representatives, it was the

basis for the Authorization Act.1

The relevant provision of the Authorization Act stated:

The Chief Financial Officer shall carry out procurement of

goods and services for the Office of the Chief Financial
Officer through a procurement office or division which shall
operate independently of, and shall not be governed by, the

1 Plaintiff also argues, Pl.’s Mot. at n.1, that this Court found that the District’s
subsequent Local Budget Autonomy Act of 2012, D.C. Law 19-321, was enacted in
violation of the Home Rule Act. Id. (citing Council of the District of Columbia v.
DeWitt, 2016 WL 1109117 (D.C. Super. Ct. Mar. 18, 2016)). In fact, Judge Holeman’s
ruling was the exact opposite—the Budget Autonomy Act was a valid exercise of the
Council’s legislative powers and did not violate the Home Rule Act. DeWitt, 2016 WL
1109117 at *18–*19. Every District budget since that ruling has been developed and
submitted according to the Budget Autonomy Act.
12
 Office of Contracting and Procurement established under
the District of Columbia Procurement Practices Act of 1985
or any successor office, except the provisions applicable
under such Act to procurement carried out by the Chief
Procurement Officer established by section 105 of such Act
or any successor office shall apply with respect to the
procurement carried out by the Chief Financial Officer’s
procurement office or division.

H.R. Rep. 109-267 at 19 (2005), Ex. 6. The House Report on the Authorization Act

identified its proposed CFO procurement provision as “similar to the CFO language

passed by the Senate in S. 1267”; the “section would provide procurement authority

for the District Chief Financial Officer.” Id. at 27.

In the Home Rule Act, Congress stated that the CFO must follow the

procurement law established by the Council, but nothing prevents the Council from

amending or creating exemptions to that procurement law. Congress presumably was

aware of the Council exempting contracts from the PPA and could have expressly

limited that authority for OCFO contracts if it so intended but did not. In short, the

legislative history of Section 424b provides no support for plaintiff’s strained reading

of the Home Rule Act.

3. The District’s Procurement Laws Support the D.C. Council’s

Authority to Enact the Exemption Act.

In addition, the Council has regularly amended the procurement laws

applicable to OCFO without any objection from Congress. Notably, the Council

repealed the PPA and passed the PPRA, effective April 8, 2011, to generally govern

the “procurement of goods and services by the District of Columbia government.”

Morphotrust USA, Inc. v. D.C. Contract Appeals Bd., 115 A.3d 571, 574 and n. 1 (D.C.

13
2015); see also D.C. Law 18-371, § 1201(a); 58 D.C. Reg. 1185 (Apr. 8, 2011). To the

extent the Council has the power to amend one of its enactments, it also has the power

to override application of that enactment. See Washington D.C. Ass’n of Realtors, Inc.

v. District of Columbia, 44 A.3d 299, 306 (D.C. 2012). Ultimately, there is no

indication that Congress intended to constrain the Council’s authority to legislate

with respect to one category of procurements—those involving OCFO. Section 424b’s

requirement that OCFO follow District procurement law is a restriction on OCFO’s

authority, not on the authority of the Council to amend its procurement laws when it

deems appropriate.

As noted above, the Court of Appeals has recognized that the Home Rule Act’s

limitations on the Council’s authority “must be construed narrowly so as not to thwart

the paramount purpose of the Home Rule Act, namely, to grant the inhabitants of the

District powers of local self-government.” Apartment & Office Bldg. Ass’n of

Metropolitan Washington v. Public Serv. Comm’n of the District of Columbia, 203

A.3d 772, 779 (D.C. 2019) (AOBA) (internal quotations and citations omitted).2

Accordingly, plaintiff’s attempt to read into the Home Rule Act an unreasonable

2 In AOBA, an entity challenged the Council’s authority to amend a law affecting

the powers of the Public Service Commission (PSC), contending that, because the
authority of the PSC was enshrined in the Charter, the Council could not change it
unless it amended the Charter. 203 A.3d at 778. The Court of Appeals held that the
challenged legislation “did not change a single word” of the Charter provision, did not
“fundamentally change the system of [District] government,” and thus did not effect
a “constructive” amendment of the Charter. Id. at 780. The same analysis should
prevail here.
14
constraint upon Council’s authority to legislate with respect to local procurements

should be rejected.

B. The PPRA Authorizes OCFO to Contract with Intralot Under the

Exemption Act.

Plaintiff’s argument that OCFO’s award of the Contract violates the PPRA and

the Home Rule Act also fails for the same reason that the Exemption Act is not barred

by the Home Rule Act: the Council possesses broad legislative authority to change

the law related to the District’s procurement of goods and services. The PPRA

requires District officials to follow its source-selection methods “[e]xcept as otherwise

authorized by law[.]” D.C. Code § 2-354.01(a)(1) (2017 Suppl.). That phrase simply

means that the legislature that passed a law imposing certain standards may later

change those standards. Cf. Chrysler Corp. v. Brown, 441 U.S. 281, 302–303 (1979)

(discussing meaning of “authorized by law”). The Exemption Act is a law that

provides a different manner of source selection, and is well within the Council’s broad

legislative authority.3

3
Other examples of PPRA exemptions include the following: Act 22-251,
“General Obligation Bonds and Bond Anticipation Notes for Fiscal Years 2018–2023
Authorization Act of 2018,” 65 D.C. Reg. 4790 (May 4, 2018) (Sec. 7(f) states “The
Procurement Act … shall not apply to whatever contract the Mayor or an Authorized
Delegate may from time to time enter into for purposes of this act . . . .”); Act 20-208,
“Fiscal Year 2014 Tax Revenue Anticipation Notes Act of 2013,” 60 D.C. Reg. 15,496
(Nov. 8, 2013) (Sec. 7(l) states “The Procurement Practices Reform Act … shall not
apply to any contract that the Chief Financial Officer may from time to time
determine to be necessary or appropriate to place, in whole or in part, including . . .
.”); Act 20-603, the “Public Space Maintenance Contracting Authorization
Amendment Act of 2014,” 62 D.C. Reg. 1527 (Feb. 6, 2015) (Sec. 2(c)(1) states
“Notwithstanding the Procurement Practices Reform Act … the Mayor may enter into
an agreement . . . .”); D.C. Law 22-155, District of Columbia Green Finance Authority
Establishment Act of 2017, eff. August 22, 2018 (65 DCR 9888) (Section 602(a) states
15
 II. Plaintiff Makes No Showing That He Would Be Irreparably Harmed in the
Absence of a Preliminary Injunction.

Even if plaintiff could establish a likelihood of success on the merits, which he

cannot, he still would not be entitled to a preliminary injunction because he fails to

satisfy any other prerequisite—namely, that he will suffer irreparable harm in the

absence of preliminary injunctive relief or, as discussed below in Section III, that the

balance of the equities tips in his favor and an injunction would serve the public

interest. Akassy, 891 A.2d at 309. The inquiry on the likelihood of success on the

merits is “[t]he most important inquiry in the injunction analysis ….” Id. But the

three purported injuries alleged in the Complaint and plaintiff’s motion—(1) the

inability of his business to create an online sports betting platform to compete in the

District’s sports wagering market, (2) harm to taxpayers from the expenditure of

funds under the Contract on October 1, 2019, and (3) the harm stemming from an

alleged violation of the law—cannot demonstrate the injury necessary to establish

standing, much less a “threatened injury … of such imminence that there is a clear

and present need for equitable relief to prevent irreparable harm ….” Barton v.

Venneri, Civil Action No. 05-0669, 2005 U.S. Dist. LEXIS 9765, at *6 (D.D.C. May 11,

2005).

“The Procurement Practices Reform Act … and its implementing regulations, shall
not apply to the Authority.”); and the Not-for-Profit Hospital Corporation
Establishment Amendment Act of 2011, enacted as Subtitle V.L. of the Fiscal Year
2012 Budget Support Act of 2011, eff. September 14, 2011 (D.C. Law 19-21; 58 DCR
6226) (Section 5122(a) states “The Procurement Practices Reform Act … and its
implementing regulations shall not apply to the Corporation[.]”).

16
 A. Plaintiff Has Failed to Show Personal Harm, Let Alone Irreparable Harm,
Because He Has Not Demonstrated an Ability to Perform Services Required
Under the Contract.

Plaintiff must demonstrate that any asserted economic harm is “significant,”

and he must “substantiate the claim that irreparable injury is ‘likely’ to occur.”

California Ass’n of Private Postsecondary Schools v. DeVos, 344 F. Supp. 3d 158, 170,

172 (D.D.C. 2018) (quoting Wis. Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985)).

As to his first alleged injury, plaintiff does not plausibly allege that he acquired any

rights under a contract or prospective contract with the District to enter the sports

wagering marketplace, nor has he demonstrated an ability to perform the services

contemplated under the Contract. As noted, the Exemption Act permitted OCFO to

contract outside of source-selection requirements in the PPRA, and therefore to

directly agree with Intralot to perform lottery and sports wagering services. Thus, to

establish harm, plaintiff “bears the burden of establishing that [he] had a substantial

chance of receiving the award.” Cf. CliniComp Int’l, Inc. v. United States, 904 F.3d

1353, 1358 (Fed. Cir. 2018) (providing the standard for standing in the sole-source

contracting context); Francis v. Recycling Solutions, 695 A.2d 63, 87 n.2 (D.C. 1997)

(“We have found examination of federal law useful in the procurement area”). Even

assuming plaintiff could compete for the award, he fails to plead that his alleged

business has the capability to perform services under the Contract.

To be sure, at the hearing on the motion for a temporary restraining order,

plaintiff presented the Court with an “affidavit,” which, while consisting mainly of

legal conclusions, stated that plaintiff had founded and owns a “sports betting

17
technology startup” in anticipation of competing in “D.C.’s sports wagering

marketplace.” Carragher Aff. (Sept. 25, 2019) ¶ 3, Pl.’s Sept. 26, 2019 Praecipe at Ex.

1. This showing is manifestly insufficient; there are no details about plaintiff’s

business, such as specific amounts earned (or even anticipated), or any feared losses.

See California Ass’n, 344 F. Supp. 3d at 171 (motion for preliminary injunction denied

where plaintiff failed to meet its “burden of presenting ‘specific details regarding the

extent to which [its] business will suffer.’”) (quoting Nat’l Ass’n of Mortg. Brokers v.

Bd. of Governors of the Fed. Res. Syst., 773 F.Supp.2d 151, 181 (D.D.C. 2011)). Thus,

even if the Contract were awarded under the competitive bidding process set forth in

the PPRA, see D.C. Code §§ 2-354.02, 2-354.03, it seems unlikely that plaintiff would

be able to compete given the strict standards for those who wish to conduct business

with the District of Columbia.

Prospective contractors must have, among other things, “adequate financial

resources,” “the necessary organization, experience, accounting, operational control,

and technical skills” and “the necessary production, construction, technical

equipment, and facilities[.]” D.C. Code § 2-353.01 (2017 Repl.). See also, e.g., Protest

of: Mont T Que Inc., D.C. Contract App. Bd. No. P-0911, 2012 WL 4753875 (August

29, 2012) (affirming dismissal of bid protest where protestor “failed to establish that

it had the “financial capacity, equipment, and past experience necessary to perform

the contract.”); Quoquoi v. United States, 2019 WL 4054107, *2 (Fed. Cl. Aug. 29,

2019) (to have standing in a bid protest, offeror must demonstrate “responsibility,”

and the “apparent ability and capacity to perform all contract requirements.”)

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(quoting Centech Grp., Inc. v. United States, 554 F.3d 1029, 1034 n.2 (Fed. Cir.

2009)). Cf. Nucor-Steel Arkansas v. Pruitt, 246 F. Supp. 3d 288, 304 (D.D.C. 2017)

(entity may be able to demonstrate “competitor standing” where “government action

benefitting one entity increases competitive pressures on another entity within the

same market”) (citing Louisiana Energy & Power Auth. v. FERC, 141 F.3d 364, 367

(D.C. Cir. 1998)). Plaintiff has not shown that he can overcome these steep hurdles.

Moreover, plaintiff has failed to show that any such financial harm is

irreparable. If he is correct on the merits of his claim, he could seek monetary

damages or other forms of relief that would remedy his alleged financial injury.

Where an economic loss can be adequately compensated through other remedies, such

as money damages, preliminary injunctive relief is inappropriate. Group Ins. Admin.,

633 A.2d at 22-23.

B. Plaintiff Has Failed to Establish the Likelihood of Harm as a Taxpayer

Because Expenditures Under the Contract Do Not Come From Tax
Dollars.

Plaintiff asserts “taxpayer standing” based on the disbursement of funds under

the Contract on October 1, 2019. Pl.’s Mot. at 11–13. That assertion is incorrect, but

not simply because there will be no disbursement of funds on October 1, 2019. Ex. 7.

Municipal taxpayers may only have standing if the suit is “‘a good-faith pocketbook

action’ complaining of ‘a direct dollars-and-cents injury’” stemming from an unlawful

expenditure of tax dollars. Vining v. Executive Board of the District of Columbia

Health Benefit Exchange Auth., 174 A. 3d 272, 280 (D.C. 2017) (quoting Doremus v.

Board of Ed. of the Borough of Hawthorne, 342 U.S. 429, 434 (1952)). In Vining, the

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Court of Appeals assumed the continued viability of the municipal taxpayer standing

doctrine because it “has not been repudiated,” id. at 279, but found that the plaintiff

there did not have standing, because the challenged expenditure was not funded by

his tax dollars. Id. at 282. So too here.

The D.C. Lottery’s annual operating budget is not funded by taxpayer dollars.

Bresnahan Decl. ¶ 19. All of the D.C. Lottery’s operating costs are funded with dollars

generated from game sales. Id. As demonstrated in the Contract, expenditures to

Intralot will be paid from a percentage of total annual gross sales, not tax dollars. See

Contract §§ B.4.2, B.4.3. Consequently, because none of plaintiff’s tax dollars will be

expended on the challenged contract, he lacks taxpayer standing or the necessary

harm to prevail on a motion for a preliminary injunction.

C. A Violation of the Law, Alone, Is Insufficient to Establish Imminent

Irreparable Harm.

In addition, plaintiff essentially argues that a violation of the law is per se

irreparable harm. Pl.’s Mot. at 16─17. Not so. Even though the District has

conclusively demonstrated, above, that no violation has occurred here, a finding of a

statutory violation does not automatically justify the issuance of an injunction.

Weinberger v. Romero-Barcelo, 456 U.S. 305, 313 (1982). It is true that if the

government seeks injunctive relief, “the proof of the violation of law may itself

establish sufficient public injury to warrant relief.” California v. American Stores Co.,

495 U.S. 271, 295 (1990). “A private litigant, however[,] must have standing [and]

must prove ‘threatened loss or damage’ to his own interests in order to obtain relief.”

Id. (citation omitted). As previously discussed, plaintiff cannot show any such injury,

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let alone irreparable injury. In fact, it is the District that suffers irreparable harm

when one of its duly enacted laws is enjoined from implementation. “[A]ny time a

state is enjoined by a court from effectuating statutes enacted by representatives of

its people, it suffers a form of irreparable injury. Maryland v. King, 133 S. Ct. 1, 3

(2012) (Roberts, C.J., in chambers) (quoting New Motor Vehicle Bd. of Cal. v. Orrin

W. Fox Co., 434 U.S. 1345, 1351 (1977) (Rehnquist, J., in chambers)).

III. The Balance of the Equities and the Public Interest Strongly Weigh
Against Granting a Preliminary Injunction.

Finally, plaintiff cannot establish that the balance of the equities or the public

interest weighs in his favor. See, e.g., In re Estate of Reilly, 933 A.2d 830, 840 (D.C.

2007) (“Before granting a preliminary injunction, the trial court ‘must determine that

more harm will result to the movant from the denial of the injunction than will result

to the nonmoving party from its grant.’”) (quoting District of Columbia v. Greene, 806

A.2d 216, 223 (D.C. 2002) (per curiam)) (emphasis in original).

If the Court enjoins the operation of the Contract here, the financial damage

to the District will be two-fold—the loss of funds from the D.C. Lottery, and the loss

of estimated revenue from sports betting. Currently, the D.C. Lottery generates

almost $4 million per month in revenue. Decl. of Beth Bresnahan (Sept. 30, 2019) ¶

13, Ex. 4. In the last five fiscal years, the D.C. Lottery has generated more than $1

billion in sales and almost $260 million in revenue into the District’s General Fund.

Id. ¶ 12.

As to the sports-betting portion of the Contract, an injunction would cause a

delay of two to three years in making online sports wagering available and cost the

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District many “financial and marketplace advantages” to be gained by entering the

lucrative sports wagering market ahead of Maryland and Virginia. Pl.’s Ex. 4

(Testimony of Beth Bresnahan, Sports Wagering Procurement Practices Reform

Exemption Act of 2019 (Jan. 28, 2018)); Bresnahan Decl. ¶¶ 17-18, Ex. 4. Specifically,

the District’s Director of Revenue Estimation estimates that the District would lose

more than $12 million from sports wagering alone in Fiscal Year 2020. Decl. of Norton

Francis (Sept. 30, 2019) ¶ 8, Ex. 8. And the significant delay in subjecting the

Contract to competitive bid procedures would be expected to cause approximately $60

million in foregone revenue for Fiscal Years 2020 through 2023, not to mention the

incalculable effect of the reduced economic activity for small and local businesses. Id.

¶ 9. Every day that a preliminary injunction is in effect, not only will the District lose

substantial and irreplaceable revenue, but also its long-term competitive position in

this marketplace will be increasingly damaged.

The District also suffers a unique form of harm when it is enjoined from

implementing its own laws. The requested injunction would frustrate the will of the

Council, the Mayor, and the District citizens they represent in achieving the purposes

of the Exemption Act. “Any time a State is enjoined by a court from effectuating

statutes enacted by representatives of its people, it suffers a form of irreparable

injury.” Greene, 806 A.2d at 223 (quoting New Motor Vehicle Bd. v. Orrin W. Fox Co.,

434 U.S 1345, 1351 (1977)). “Equitable relief is not granted as a matter of course, and

a court should be particularly cautious when contemplating relief that implicates

public interests.” Salazar v. Buono, 559 U.S. 700, 714 (2010). The entry of an

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injunction here would seriously injure the economic interests of the District and have

ripple effects on the many small and local businesses that would profit secondarily in

a sports wagering marketplace. By contrast, plaintiff will experience no harm in the

absence of an injunction because the Exemption Act is a valid exercise of the Council’s

legislative authority. Because all factors weigh in the District’s favor, the Court

should deny plaintiff’s motion.

CONCLUSION

For the foregoing reasons, the Court should deny plaintiff’s motion for a

preliminary injunction.

Dated: September 30, 2019. Respectfully submitted,

KARL A. RACINE
Attorney General for the District of Columbia

TONI MICHELLE JACKSON

Deputy Attorney General
Public Interest Division

/s/ Fernando Amarillas

FERNANDO AMARILLAS [974858]
Chief, Equity Section

/s/ Michael A. Tilghman II

MICHAEL A. TILGHMAN II [988441]
Assistant Attorney General
ANDREW J. SAINDON [456987]
Senior Assistant Attorney General
441 Fourth Street, N.W., Suite 600S
Washington, D.C. 20001
(202) 727-6247
(202) 741-8776 (fax)
Email: michael.tilghman@dc.gov
andy.saindon@dc.gov

Counsel for Defendant

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 CERTIFICATE OF SERVICE

I certify that on September 30, 2019, Defendant District of Columbia’s

Opposition to Plaintiff’s Motion for a Preliminary Injunction and accompanying

documents were served by CaseFileXpress on all counsel of record.

/s/ Michael A. Tilghman II

MICHAEL A. TILGHMAN II

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