District of Columbia v. ExxonMobil Oil Corp.

Notice: This opinion is subject to formal revision before publication in the

Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the

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volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 14-CV-633 11/02/2017

DISTRICT OF COLUMBIA, APPELLANT,

V.

EXXONMOBIL OIL CORPORATION, et al., APPELLEES.

Appeal from the Superior Court

of the District of Columbia

(CAB-5874-13)

(Hon. Craig Iscoe, Trial Judge)

(Argued November 9, 2016 Decided November 2, 2017)

Catherine A. Jackson, Assistant Attorney General, with whom Karl A.

Racine, Attorney General for the District of Columbia, Todd S. Kim, Solicitor

General, Loren L. AliKhan, Deputy Solicitor General, Donna M. Murasky, Senior

Assistant Attorney General, and Bennett Rushkoff, Assistant Deputy Attorney

General, were on the brief, for appellant.

Robert M. Loeb for appellee ExxonMobil Oil Corporation. Ross C. Paolino,

and Christina G. Sarchio, were on the brief, for appellee.

Alphonse M. Alfano for appellees Anacostia Realty, LLC, Springfield

Petroleum Realty, LLC, and Capitol Petroleum Group, LLC.

William L. Taylor and Alan J. Thiemann were on the brief for Mid-Atlantic

Petroleum Distributors Association, Inc., amicus curiae, in support of appellees.

Before THOMPSON and EASTERLY, Associate Judges, and REID, Senior

Judge.

Opinion for the court by Associate Judge THOMPSON.

2

Dissenting opinion by Associate Judge EASTERLY at page 51.

THOMPSON, Associate Judge: This action arose when appellant District of

Columbia (―the District‖), asserting that it was acting ―in its parens patriae

capacity and through its Attorney General,‖ brought suit against

defendant/appellee ExxonMobil Oil Corp. (―Exxon‖) and defendants/appellees

Anacostia Realty, LLC (―Anacostia‖) and Springfield Petroleum Realty, LLC

(―Springfield‖) (affiliated entities sometimes hereafter referred to together as the

―Distributors‖), and Capitol Petroleum Group, LLC (―CPG‖)1 for declaratory and

injunctive relief for claimed violations of D.C. Code § 36-303.01 (a)(6) and (11)

(2012 Repl.), contained in Subchapter III of a statute known as the ―Retail Service

Station Act‖ (―RSSA‖). The Superior Court granted defendants‘/appellees‘

motions to dismiss the complaint, agreeing with the defendants that the District had

not ―established standing through common law parens patriae authority‖ and

―does not have express or implied statutory authority‖ to maintain this action. The

District argues that the trial court erred in dismissing the complaint. We agree and

therefore reverse and remand for further proceedings.

1

Appellees describe CPG as ―a service company that does not own or

control any service stations and is not engaged in the sale of motor fuels in the

District or elsewhere.‖

3

I. Background

A. The Allegations of the Complaint

The complaint alleges that until 2009, Exxon owned a number of retail

gasoline service stations located in the District, which it leased to independent

retail dealers that operated the stations under franchise agreements. Under the

franchise agreements, Exxon had the exclusive right to supply Exxon-branded

gasoline to the retail service stations. Although refiner Exxon also had gasoline

distribution agreements with wholesale gasoline distributors in the area, it

prohibited them from supplying Exxon-branded gasoline to the franchisee retail

service stations. Beginning in 2009, Exxon transferred ownership of its retail

service station properties either to Anacostia or Springfield. Exxon also assigned

to Anacostia or Springfield its rights under the franchise agreements.

According to the District — and this is the gravamen of its complaint —

―[t]he dealer franchise agreements, and later versions of these agreements‖

unlawfully ―compel the independent retail dealers operating these stations to buy

their Exxon-branded gasoline exclusively from – and at prices set by‖ Anacostia or

4

Springfield or CPG. The complaint further alleges that Exxon continues to enforce

the unlawful exclusive-supply requirement through its distribution agreements with

Anacostia and Springfield, which ―allow only one supplier to supply [Exxon-

branded] gasoline to each Exxon-branded gasoline station in D.C.‖ As a result of

the dealer-franchise and distribution agreements, the complaint alleges, the

defendants/appellees ―set the wholesale price[] paid for Exxon-branded gasoline in

D.C.,‖ depriving retail dealers who sell Exxon-branded gasoline and ―many

thousands of consumers in D.C.‖ who purchase Exxon-branded gasoline in D.C. of

―the benefits of competition in the wholesale supply of Exxon-branded gasoline.‖

The complaint asserts that independent retail Exxon stations cannot ―purchase

Exxon-branded gasoline at prices below the prices charged by‖ the Distributors.

The complaint further asserts that of the thirty-one Exxon-branded gasoline

stations in the District, all of which are owned by Anacostia or Springfield, twenty-

seven are operated by independent retail dealer franchisees, all of which are subject

to and restricted by the allegedly unlawful dealer-franchise and distribution

agreements. According to the complaint, these independent franchisee-operated

retail stations comprise about 25% of the gasoline stations in the District.

The complaint charges that the dealer-franchise agreements between the

Distributors and independent retail service stations and the distribution agreements

5

between Exxon and the Distributors (all of which the District asserts constitute

―marketing agreements‖ as that term is defined in the RSSA) violate two

provisions of Subchapter III of the RSSA: D.C. Code § 36-303.01 (a)(6) and (11).

D.C. Code § 36-303.01 (a)(6) states that:

[No marketing agreement shall . . .] [p]rohibit a retail

dealer from purchasing or accepting delivery of, on

consignment or otherwise, any motor fuels, petroleum

products, automotive products, or other products from

any person who is not a party to the marketing agreement

or prohibit a retail dealer from selling such motor fuels or

products, provided that if the marketing agreement

permits the retail dealer to use the distributor‘s

trademark, the marketing agreement may require such

motor fuels, petroleum products, and automotive

products to be of a reasonably similar quality to those of

the distributor, and provided further that the retail dealer

shall neither represent such motor fuels or products as

having been procured from the distributor nor sell such

motor fuels or products under the distributor‘s

trademark[.]

D.C. Code § 36-303.01 (a)(11) states that ―no marketing agreement shall‖

―[c]ontain any term or condition which, directly or indirectly, violates this

subchapter.‖ The complaint asks for a declaration that defendants‘/appellees‘

marketing agreements violate these provisions of District of Columbia law and for

an injunction prohibiting enforcement of the agreements.

6

B. The Trial Court’s Ruling on the Motions to Dismiss

The District filed its complaint on August 27, 2013, and appellees filed their

motions to dismiss on October 7, 2013. Asserting that the RSSA sets out ―a

carefully crafted enforcement scheme in which the Mayor of the District of

Columbia is authorized to enforce Subchapters II and IV of the Act‖2 and in which

―retail service station dealers are authorized to enforce Subchapter III,‖3 appellees

argued first that the statute makes a ―clear[] and explicit[] assign[ment of] separate

roles,‖ indicating that ―no public enforcement of Subchapter III was intended.‖

Accordingly, appellees argued, the Attorney General has no ―cause of action‖ or

―right of action‖ to enforce, and ―no role . . . in enforcing,‖ Subchapter III of the

RSSA and that the allegations of the complaint otherwise fail to state a claim.

In addition to arguing that the District lacks statutory authority to sue to

enforce Subchapter III of the RSSA, appellees argued that the District in its

complaint failed to allege the concrete injury necessary to establish Article III-type

standing to maintain this suit. Appellees argued that the complaint asserts in only a

2

See D.C. Code § 36-302.05 (a) (2012 Repl.).

3

See D.C. Code § 36-303.06 (a)(1) (2012 Repl.).

7

―vague and undefined way‖ that Exxon‘s and the Distributors‘ conduct deprives

dealers and consumers of the benefits of competition. They contended in addition

that the District failed to assert a ―quasi-sovereign interest‖ — ―a harm that is

sufficiently severe and generalized as to threaten the economy of the District as a

whole‖ — to support its assertion that it is suing as parens patriae.

After a hearing on January 9, 2014, the Superior Court issued its May 6,

2014, Order dismissing the complaint. The court began its analysis by noting that

―the RSSA does [not] provide an express statutory right for the Attorney General

or Mayor to pursue violations of Subchapter III.‖ The court cited the provision of

the RSSA that expressly gives the Mayor authority to enforce Subchapters II and

IV of the statute (D.C. Code § 36-302.05 (a)) and the provision that ―expressly

allows for a retail dealer to file a civil action against distributors [in certain

circumstances]‖ (D.C. Code § 36-303.06 (a)(1)) and reasoned that the ―failure to

give the Mayor authority to enforce violations of Subchapter III [was] not a mere

oversight.‖ The court further reasoned that because the RSSA contains no

language making its provisions enforceable by ―‗any person‘ injured or aggrieved,‖

the statute also does not confer on the District implied authority to enforce

Subchapter III.

8

The court rejected the District‘s argument that the broad authority to uphold

the public interest vested in the Attorney General under D.C. Code § 1-301.81

(2012 Repl.) permits the Attorney General to sue to enforce the RSSA. Looking to

the then-most-recent legislative history of the RSSA, the court reasoned that the

Council of the District of Columbia (the ―Council‖) ―deliberately‖ and

―consciously chose not to [amend the RSSA so as to] grant the Attorney General or

Mayor the express ability to enforce penalties for violations of Subchapter III of

the RSSA.‖ The court‘s statement was a reference to Bill 19-299, proposed by the

Attorney General and introduced in 2011, that would have given the Attorney

General pre-complaint investigatory subpoena authority with respect to suspected

violations of D.C. Code § 36-303.01 (a)(6) by any refiner or dealer, as well as

express authority to sue to enjoin any such violations and to recover civil penalties,

attorneys‘ fees, and costs.

Moving to the issue of standing, the court reasoned that the District‘s

allegations were not ―sufficiently concrete as to create an actual controversy

between the District and Defendants‖ given that the allegations did not cite

―specific effects of the unlawful marketing agreements, which affect the economy

of the District.‖ In particular, the court reasoned, the complaint fell short because

it fails to allege ―that the price of ExxonMobil‘s fuel is too high at service

9

stations‖; that there is a ―dealer who would want to purchase motor fuel from a

third-party supplier‖; that ―there exists a third-party supplier, which would sign

contracts with retail dealers for lower prices‖; that ―retail dealers desire such

competition‖;4 or ―that if a retail dealer were to purchase gasoline from a third-

party supplier, then that relationship would create or ensure lower prices for

consumers.‖ The court also remarked that the District‘s allegation that none of the

twenty-seven independent retail dealers can purchase Exxon-branded gasoline at

prices below the prices charged by the Distributors was ―conclusory and

unsupported by any factual allegations.‖

Citing Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982)

(―Snapp‖), the court rejected the District‘s argument that it has standing to sue

through its parens patriae authority, reasoning that the complaint fails to ―allege a

quasi-sovereign interest.‖ The court explained that a state asserts ―a quasi-

sovereign interest in the health and well-being of its citizens [only] when the

articulated injury is sufficiently concrete and affects a substantial segment of its

4

Referring to the District‘s argument at the hearing on the motions to

dismiss that ―it was . . . aware of retail dealers who wanted to seek other suppliers

or distributors who would sell gasoline for a lower price,‖ the court remarked that

―these allegations are not in the Complaint.‖

10

population.‖5 The court remarked that the District ―is essentially alleging an

abstract and hypothetical injury.‖ The court observed in addition that the District

was ―requesting purely injunctive relief‖6 but had ―not alleged any specific future

harm‖ ―other than generally alleging that the marketing agreements damage the

competitive effects of the gasoline markets.‖

Reiterating that the ―Council thus far has chosen not to provide the Attorney

General with authority to bring actions under Subchapter III,‖ the court ruled that

―[u]ntil such time as the Council changes its position, . . . the Attorney General has

no standing to bring actions under that Subchapter of III of the RSSA‖ and that the

Council ―clearly intended for only retail dealers to have a right of action pursuant

5

As appellees emphasize, the Supreme Court stated in Snapp that for a

State to maintain a parens patriae suit based on a quasi-sovereign interest, the

State must ―allege[] injury to a sufficiently substantial segment of its population.‖

458 U.S. at 607. Typically, the matters complained of must be of ―grave public

concern,‖ ―affect [the State‘s] citizens at large,‖ and ―seriously jeopardize[]‖ their

physical or economic well-being, such that the State ―has an interest apart from

that of the individuals affected.‖ Id. at 602-03, 605-07 (internal quotation marks

omitted).

6

In fact, the District‘s complaint also seeks declaratory relief as well as (the

boilerplate) ―such further equitable relief as the [c]ourt deems just and proper.‖

11

to Subchapter III.‖7 Accordingly, the court dismissed the complaint. This appeal

by the District of Columbia followed.

II. Standard of Review

The trial court did not couch its rulings in terms of Rule 12 (b)(1) or Rule 12

(b)(6) of the Superior Court Rules of Civil Procedure, but we treat its ruling that

the District lacks concrete-injury-in-fact standing as a ruling under Super. Ct. Civ.

R. 12 (b)(1) and its ruling that only retailer dealers may sue to enforce Subchapter

7

The court did not reach the argument by defendants/appellees Anacostia,

Springfield, and CPG that the District‘s complaint fails to state a claim that they

have violated § 36-303.0l (a)(6). The court explained that ―[b]ecause of its ruling

on standing and because the parties did not fully brief the exclusivity issue or

address it at oral argument,‖ it would not reach a determination on ―whether the

plain language of the ‗exclusivity‘ provision of the RSSA prohibits a retail dealer

from purchasing motor fuels from a distributor who supplies the same-branded

motor fuels as the distributor with whom it has a marketing agreement.‖

Assuming arguendo that the District did have standing, the trial court found

that Exxon, no less than the Distributors, ―would also be liable for any violation of

the RSSA because a [‗]marketing agreement[‘] also [comprises] collateral and

ancillary agreements‖ such as the agreements between Exxon and the Distributors

that allegedly require exclusive-dealing restrictions. Exxon, whose brief in this

court adopts by reference the arguments of the other appellees, has not challenged

that conclusion.

12

III of the RSSA as a ruling under Super. Ct. Civ. R. 12 (b)(6).8 Standing (and

whether to uphold a dismissal under Super. Ct. Civ. R. 12 (b)(1) for lack of

standing) is a question of law which this court considers on appeal de novo. See

UMC, 120 A.3d at 42. Our review of a dismissal under Super. Ct Civ. R. 12 (b)(6)

for failure to state a claim is also de novo. Daley v. Alpha Kappa Alpha Sorority,

Inc., 26 A.3d 723, 730 (D.C. 2011). ―[T]he dispute between the parties in this case

requires us to decide the proper interpretation of a statute, a question of law,‖ and

our review of that issue, too, is de novo. Medstar Health, Inc. v. District of

Columbia Dep’t of Health, 146 A.3d 360, 368 (D.C. 2016).

III. Analysis

A. Whether the District Has Standing to Maintain This Suit

The trial court began its analysis by addressing the issue of whether the

Attorney General has statutory authority to maintain this suit. For reasons we shall

8

See UMC Dev., LLC v. District of Columbia, 120 A.3d 37, 43 (D.C. 2015)

(―[A] plaintiff‘s standing is properly raised as a challenge to the court‘s subject

matter jurisdiction via a motion to dismiss under Super. Ct. Civ. R. 12 (b)(1)[.]‖);

Grayson v. AT&T Corp., 15 A.3d 219, 224 (D.C. 2011) (en banc) (―[W]e consider

whether [the] complaint states a cause of action within the meaning of [Super. Ct.

Civ. R. 12 (b)(6)].‖); see also Harold H. Huggins Realty, Inc. v. FNC, Inc., 634

F.3d 787, 795 n.24 (5th Cir. 2011) (―Unlike a dismissal for lack of constitutional

standing, which should be granted under Rule 12(b)(1), a dismissal for lack of

prudential or statutory standing is properly granted under Rule 12(b)(6).‖).

13

explain, that is the primary question presented by this appeal, but we begin instead

with the ―threshold jurisdictional question‖ of standing. Grayson, 15 A.3d at 229.

―[E]ven though Congress created the District of Columbia court system

under Article I of the Constitution, rather than Article III, this court has followed

consistently the constitutional standing requirement embodied in Article III.‖ Id. at

224. ―[T]he irreducible constitutional minimum of standing consists of three

elements[:] The plaintiff must have (1) suffered an injury in fact, (2) that is fairly

traceable to the challenged conduct of the defendant, and (3) that is likely to be

redressed by a favorable judicial decision.‖ Spokeo, Inc. v. Robins, 136 S. Ct.

1540, 1547 (2016) (internal quotation marks and citation omitted); see also

Grayson, 15 A.3d at 234 n.36 (explaining that the injury-in-fact requirement

requires ―an invasion of a legally protected interest which is (a) concrete and

particularized and (b) actual or imminent, not conjectural or hypothetical‖ (internal

quotation marks and citations omitted)).

We also apply prudential standing rules, i.e., ―judicially self-imposed limits

on the exercise . . . of jurisdiction, such as the general prohibition on a litigant‘s

raising another person‘s legal rights.‖ Id. at 235 (internal quotation marks

omitted); Padou v. District of Columbia Alcoholic Bev. Control Bd., 70 A.3d 208,

14

211 (D.C. 2013) (―[U]nder the so called prudential principles of standing, a

plaintiff may only assert its legal rights, [and] may not attempt to litigate

generalized grievances.‖ (internal quotation marks omitted)). The Supreme Court

established in Warth v. Seldin, 422 U.S. 490 (1975), that the legislature may

―either expressly or by clear implication‖ ―grant a[] . . . right of action to persons

who otherwise would be barred by prudential standing rules.‖ See id. at 501

(―[P]ersons to whom Congress has granted a right of action, either expressly or by

clear implication, may have standing to seek relief on the basis of the legal rights

and interests of others, and, indeed, may invoke the general public interest in

support of their claim.‖); see also, e.g., Utah ex rel. Div. of Forestry, Fire & State

Lands v. United States, 528 F.3d 712, 721 (10th Cir. 2008) (―[S]tate law may

create the asserted legal interest.‖). To the extent this case raises a prudential

standing issue, that issue is subsumed in our discussion in section III.B below. 9

1. The District Was Not Required to Assert Injury to a Quasi-Sovereign

Interest to Establish Standing to Sue As Parens Patriae.

9

There, we discuss the power that District law confers on the Attorney

General of the District of Columbia to pursue the public interest and whether the

Attorney General has a cause of action to enforce Subchapter III of the RSSA. See

Davis v. Passman, 442 U.S. 228, 239 n.18 (1979) (―[C]ause of action is a question

of whether a particular plaintiff is a member of the class of litigants that may, as a

matter of law, appropriately invoke the power of the court[.]‖).

15

In their motions to dismiss and their arguments to the trial court, appellees

framed the issue of standing in this case as an issue of whether the District had

asserted an interest ―sufficiently concrete [and particularized] to create an actual

controversy between the state and the defendant for Article III purposes.‖

Appellees argued that to do this, the District‘s complaint had to ―establish an injury

to a quasi-sovereign interest,‖ ―the most basic and most fundamental requirement[]

for parens patriae standing.‖ Citing Snapp, they told the court that, to establish that

it was acting in pursuit of a quasi-sovereign interest, the District was required to

allege ―enough citizens injured,‖ i.e., ―injury to a substantial segment of the

population,‖ sufficient ―to either damage the economy or threaten an injury to the

economy.‖ The District‘s opposition brief and the trial court‘s Order largely

followed that lead, and the briefs on appeal likewise focus a great deal of attention

on whether the District‘s complaint alleged concrete injury to a substantial enough

segment of the District‘s population, such that the District was asserting a quasi-

sovereign interest and has standing on that basis.

Importantly, however, the context of the Supreme Court‘s statements in

Snapp on which the parties and the trial court have relied was its ―articulat[ion of]

the circumstances under which a state has parens patriae standing to bring an

16

action [in federal court] under federal law.‖10 Massachusetts v. Bull HN Info. Sys.,

16 F. Supp. 2d 90, 96 (D. Mass. 1998) (emphasis added); see also Sierra Club v.

Two Elk Generation Partners, Ltd., 646 F.3d 1258, 1275 (10th Cir. 2011) (―[T]he

parens patriae doctrine . . . is a doctrine of standing which affords state officials a

platform from which to vindicate their quasi-sovereign interests in federal

court.‖).11 The Snapp Court did not purport to establish the requirements for

10

The Court has required a State seeking to sue another State in the

Supreme Court in an effort to redress alleged harms to the plaintiff State‘s citizens

(and invoking the Court‘s original jurisdiction under Art. III, § 2, of the U.S.

Constitution) to assert an interest that rises to the level of a quasi-sovereign interest

because ―if, by the simple expedient of bringing an action in the name of a State,

this Court‘s original jurisdiction could be invoked to resolve what are, after all,

suits to redress private grievances, our docket would be inundated.‖ Pennsylvania

v. New Jersey, 426 U.S. 660, 665 (1976) (denying Pennsylvania‘s motion for leave

to file suit as parens patriae on behalf of its citizens because the suit ―represents

nothing more than a collectivity of private suits against New Jersey for taxes

withheld from private parties,‖ id. at 665-66).

11

See also Dwight R. Carswell, Comment, CAFA and Parens Patriae

Actions, 78 U. CHI. L. REV. 345, 347 (2011) (―[T]he parens patriae standing

doctrine allows a state to bring an action on behalf of its citizens under a federal

statute whenever the state can demonstrate a quasi-sovereign interest.‖) (emphasis

added). Indeed, ―[t]he primary justification for recognizing parens patriae

standing in the States . . . [is that] the States have surrendered certain aspects of

their sovereignty to the federal government and, in return, are given recourse [to

the federal courts] to solve their problems with other States,‖ Estados Unidos

Mexicanos v. DeCoster, 229 F.3d 332, 337 (1st Cir. 2000); to ―secur[e] observance

of the terms under which [the States] participate[] in the federal system,‖ Snapp,

458 U.S. at 607-08; and to ―assur[e] that the benefits of the federal system are not

denied to [the] general population‖ of each State, id. at 608.

17

bringing a parens patriae suit where a State (or, as here, the District) brings suit in

its local court to enforce its own laws.

Moreover, as we discussed with the parties at oral argument, in Snapp, the

Supreme Court distinguished a quasi-sovereign interest, which ―consist[s] of a set

of interests that the State has in the well-being of its populace,‖ 458 U.S. at 602,

from a sovereign interest. The Court explained that one ―easily identified‖

―sovereign interest[]‖ is ―the exercise of sovereign power over individuals and

entities within the relevant jurisdiction,‖ which ―involves the power to create and

enforce a legal code, both civil and criminal.‖ 458 U.S. at 601. See also Louisiana

ex rel. Ieyoub v. Brunswick Bowling & Billiards Corp., No. 95-404, 1995 U.S.

Dist. LEXIS 3506, at *4-6 (E.D. La. Mar. 20, 1995) (stating, in remanding to state

court an action initially brought there by the Louisiana Attorney General to remedy

violations of state unfair trade laws but erroneously removed by the defendant to

federal court, that ―[t]he parties . . . discuss at length parens patriae standing and

whether the State has a supporting ‗quasi-sovereign‘ interest in this matter. But,

the State‘s interest here, if any, is not quasi-sovereign, but sovereign. The State

has a sovereign interest in ‗the exercise of sovereign power,‘‖ which includes ‗―the

power to create and enforce a legal code, both civil and criminal‖‘ (quoting Snapp,

458 U.S. at 601)).

18

Further, the Supreme Court has instructed that a ―State has standing to

sue . . . when [either] its sovereign [interests] or [its] quasi-sovereign interests are

implicated.‖ Pennsylvania v. New Jersey, 426 U.S. at 665 (discussing suits under

the Court‘s original jurisdiction). In addition, while the Court confirmed in Snapp

that ―a parens patriae action c[an] rest upon the articulation of a ‗quasi-sovereign‘

interest,‖ Snapp, 458 U.S. at 602 (citing Louisiana v. Texas, 176 U.S. 1 (1900)),

the Court has instructed as well that ―when a State is ‗a party to a suit involving a

matter of sovereign interest,‘ it is parens patriae and ‗must be deemed to represent

all of its citizens.‖‘ South Carolina v. North Carolina, 558 U.S. 256, 266 (2010)

(brackets omitted) (quoting New Jersey v. New York, 345 U.S. 369, 372-73

(1953)).

Thus, under the cases discussed above, a State‘s standing to sue as parens

patriae may be based on its assertion of a sovereign interest (such as when it sues

to ―enforce [its] legal code,‖ Snapp, 458 U.S. at 601) rather than on its assertion of

a quasi-sovereign interest. The implication for this case is that appellees were not

entitled to prevail on their claim that the District lacks parens patriae standing to

19

maintain this action merely by satisfying the trial court that the District had not

established a quasi-sovereign interest.12

We recognize that even after enactment of the District‘s Home Rule charter,

the District is merely ―akin to a sovereign State.‖13 Feaster v. Vance, 832 A.2d

12

Our conclusion that the District did not need to show a quasi-sovereign

interest under Snapp should not be read to imply that the District‘s interest in

fostering a competitive gasoline market for the benefit of consumers would not

qualify as a quasi-sovereign interest if that were the applicable test. While

―increased legal protection to retail dealers‖ was ―one of the Council‘s objectives

in adopting the RSSA,‖ Dege v. Milford, 574 A.2d 288, 291 (D.C. 1990) (internal

quotations marks omitted), the Council also found that non-competitive practices,

including ―functional exclusive dealing arrangements,‖ ―will continue to have

severe detrimental impacts on consumers in the District of Columbia‖ and that the

new legislation would ―enhance competition‖ to the benefit of consumers. D.C.

Council, Comm. on Transp. & Envtl. Affairs, Report on Bill No. 1-333 at 19, 22

(Sept. 10, 1976) (the ―1976 Report‖); cf. Kelley v. Carr, 442 F. Supp. 346, 356

(W.D. Mich. 1977) (―Surely some of the most basic of a state‘s quasi-sovereign

interests include maintenance of the integrity of markets and exchanges operating

within its boundaries[.]‖). The District‘s complaint alleges ―widespread‖

violations of the provision of the RSSA that prohibits exclusive dealing

arrangements. And though we need not decide the issue, we are inclined to agree

with the trial court that the District‘s allegations about ―27 retail dealers‖ and

―thousands of consumers‖ ―may represent a substantial segment of the District‘s

population.‖

13

At oral argument, the Assistant Attorney General acknowledged this,

saying that ―the District has an interest akin to a sovereign interest‖ albeit not ―in

the same way as a state has a sovereign interest in our system.‖ She added that

―[t]he District obviously does have an interest in enforcing its laws and in

protecting its public‖ and has ―sovereign authority . . . delegated through . . .the

Home Rule Act.‖

20

1277, 1287 (D.C. 2003); see also District of Columbia v. John R. Thompson Co.,

346 U.S. 100, 105-08 (1953) (―The subordinate legislative powers of a municipal

character, which have been or may be lodged in the city corporations, or in the

District corporation, do not make those bodies sovereign.‖ (internal quotation

marks omitted)); District of Columbia v. Owens-Corning Fiberglas Corp., 572

A.2d 394, 404 n.26 (D.C. 1989) (―[U]nder the Home Rule Act, the District

government continues to exist as a body corporate for municipal purposes[.]‖

(internal quotation marks omitted)). However, this court has recognized that the

District, which has ―the burden of legislating upon essentially local District

matters,‖ D.C. Code § 1-201.02 (a) (2012 Repl.), is a sovereign for many purposes.

See, e.g., Feaster, 832 A.2d at 1287 (―The District of Columbia government is thus

both the de jure and the de facto sovereign with respect to local public employee

labor relations in the District.‖); Barnhardt v. District of Columbia, 8 A.3d 1206,

1214 (D.C. 2010) (referring to the District of Columbia‘s ―sovereign immunity‖).

Here, there is ―no need for us to decide that the District has all the sovereignty of a

state,‖ Owens-Corning, 572 A.2d at 403, to conclude, as we do, that this case is a

suit by the District based on its sovereign interest in enforcing statutory

prohibitions its legislature has enacted as part of ―the public policy of the District

of Columbia.‖14 D.C. Code § 36-305.01 (2012 Repl.).

14

At oral argument, when asked whether the District had in effect asserted a

(continued…)

21

Our dissenting colleague criticizes that conclusion on the ground that the

District never advanced a sovereign-interest theory of standing. To be sure, the

District did focus its briefing, before us and in the trial court, on whether its

complaint sufficiently pled a quasi-sovereign interest, but the District has not

entirely overlooked what the Supreme Court said in Snapp about parens patriae

standing and sovereign lawmaking power: The Court explained that ―[o]ne helpful

indication in determining whether an alleged injury to the health and welfare of its

citizens suffices to give the State standing to sue as parens patriae is whether the

injury is one that the State, if it could, would likely attempt to address through its

sovereign lawmaking powers.‖ 458 U.S. at 607. Relying on that statement in

Snapp, the District argued in its brief to us that ―[t]he fact that the District not only

could address, but has addressed, the threat of injury to its wholesale gasoline

market through legislation . . . confirms that the alleged injury suffices to provide

(…continued)

sovereign interest, counsel for the Distributors did not squarely disagree with that

characterization, but pressed the following point: ―They still have to have statutory

authority to bring the lawsuit. You can‘t just assert a sovereign interest. . . . I‘ve

never seen in any case whether you‘re asserting a sovereign interest, a proprietary

interest, a quasi-sovereign interest, where if you‘re suing under a statute you don‘t

need some sort of authority that you can simply ignore the will of the legislature.‖

We address in section II.B infra whether permitting this suit to proceed would

―ignore the will of the legislature.‖

22

the District with [the] parens patriae standing‖ it asserted in its complaint.15 The

District made a similar argument in its brief opposing appellees‘ motion to dismiss,

arguing that ―the appropriateness of the District seeking relief as parens patriae is

strengthened by the RSSA‘s explicit recognition of the public interest in enhancing

honest competition in D.C.‘s gasoline supply.‖16 That argument by the District

accords with the Supreme Court‘s statement, quoted supra, that ―when a State is a

party to a suit involving a matter of sovereign interest, it is parens patriae and

must be deemed to represent all of its citizens.‖ South Carolina v. North Carolina,

558 U.S. at 266 (brackets and internal quotation marks omitted).

15

Neither this argument by the District nor our acceptance of it can fairly be

read to say that the District may sue as parens patriae to enforce every District of

Columbia law. As has been observed, ―[a] statute declaring conduct ‗unlawful‘ [or

establishing a prohibition against certain conduct] is of a different order of

magnitude with respect to public policy than a statute which determines the right of

one person to recover from another, or sets the jurisdictional requirements for

divorce, or governs the custody of a child, or enables a local authority to grant a

license.‖ Shell Oil Co. v. Noel, 608 F.2d 208, 212 (1st Cir. 1979). The District

argues that it is ―denied parens patriae authority to enforce a statutory provision

where ―the provision in question is subject to a carefully-crafted enforcement

scheme or (2) the District seeks damages without clear legislative intent that it is

allowed to do so.‖ We need not decide in this opinion all of the parameters of the

District‘s standing to enforce its body of laws. But we think it clear that the RSSA

provisions in issue here state statutory prohibitions imposed to foster competition

for the benefit of consumers; they are not, as our dissenting colleague suggests,

mere ―modifi[cations of] common law contract rules.‖ Post, at 52.

16

Thus, contrary to the charge by our dissenting colleague, we have not

―raise[d] a new theory of standing for [the District] sua sponte.‖ Post, at 64.

23

In short, the District did not need to allege (in addition) a ―quasi-sovereign

interest‖ within the meaning of Snapp and its progeny in order to sue in the

Superior Court as parens patriae to enforce District of Columbia law.17 The trial

court erred in dismissing the complaint for what the court found was its failure to

establish parens patriae standing by alleging facts necessary to show a quasi-

sovereign interest under Snapp.

2. The District Sufficiently Alleged Standing By Asserting That It Was

Suing to Enforce Certain D.C. Statutory Prohibitions, Which

Defendants (Allegedly) Are Violating Through Their Marketing

Agreements.

In addition to arguing that the District failed to allege facts sufficient to

show injury to a substantial segment of its population and thus injury to a quasi-

17

Another reason why the District‘s assertion of ―parens patriae‖ status did

not need to be based on an assertion of a quasi-sovereign interest within the

parameters established in Snapp is that this court has recognized, in a number of

contexts, that the Attorney General may — outside those parameters — bring suit

in the name of the District of Columbia as parens patriae to pursue matters arising

under local law. For example, this court has recognized the power of the Attorney

General ―to sue in a parens patriae capacity to enforce the public right to

continuing application of charitable trust property to proper purposes,‖ Hooker v.

Edes Home, 579 A.2d 608, 612, 612 n.9 (D.C. 1990), even though ―the District of

Columbia does not have a statute specifically authorizing‖ such actions. In re

Ingersoll Trust, 950 A.2d 672, 675 n.1 (D.C. 2008) (internal quotation marks

omitted). We cite these cases merely to underscore the point that the statement in

the District‘s complaint that it was bringing suit in its parens patriae capacity need

not be read as an invocation of the quasi-sovereign interest/parens patriae doctrine

discussed in Snapp.

24

sovereign interest, appellees advance a more general argument that the District

failed to establish Article III-type standing. Appellees assert that the District‘s

complaint ―alleges no real and concrete injury to any citizen of the District‖ and,

more specifically, no injury to competition, retail dealers, suppliers, or consumers.

However, to repeat, the District‘s complaint alleges and seeks to enjoin

violations of District of Columbia law, specifically, violations of certain

marketing-agreement prohibitions set out in the RSSA (―No marketing agreement

shall . . . .‖). Case law establishes that a government is injured when its laws are

violated. See, e.g., Vermont Agency of Natural Res. v. United States ex rel.

Stevens, 529 U.S. 765, 771 (2000) (―It is beyond doubt that the complaint asserts

an injury to the United States[,]‖ i.e., an ―injury to its sovereignty arising from

violation of its laws.‖).18 The District‘s argument in its brief to this court that it

18

See also United States v. Yarbrough, 452 F. App‘x 186, 189 (3d Cir.

2011) (―Because the Government has standing to enforce its own laws,

[appellant‘s] argument that the Government has failed to allege an injury in fact is

frivolous.‖); Stauffer v. Brooks Bros., 619 F.3d 1321, 1325 (Fed. Cir. 2010)

(―Congress has, by enacting [a statute that prohibits falsely marking an unpatented

item with the word ―patent‖], defined an injury in fact to the United States. In

other words, a violation of that statute inherently constitutes an injury to the United

States. . . . The parties have not cited any case in which the government has been

denied standing to enforce its own law. Because the government would have

standing to enforce its own law, Stauffer, as the government‘s assignee, also has

standing[.]‖); id. at 1327 (stating that ―the United States‘ sovereign injury is

sufficient to confer standing upon it‖ and finding it unnecessary to decide whether

(continued…)

25

satisfied Article III standing requirements because ―[g]overnmental entities have a

(…continued)

a proprietary or a sovereign injury of the United States was implicated in the qui

tam action because ―either one would confer standing on the government, and

therefore Stauffer‖); United States v. Daniels, 48 F. App‘x 409, 418 (3d Cir. 2002)

(rejecting as frivolous criminal defendant‘s contention that his crimes did not

inflict the concrete and imminent injury in fact on the United States that Article III

requires, because ―[a]s sovereign, the United States has standing to prosecute

violations of valid criminal statutes‖); Crockett v. District of Columbia, 95 A.3d

601, 605 (D.C. 2014) (reasoning that because ―[t]he Attorney General for the

District of Columbia is responsible for all law business of the . . . District and for

upholding the public interest‖ . . . [and] is also authorized to intervene in legal

proceedings on behalf of this public interest[,] . . . the Attorney General has an

interest, sufficient to confer standing, in the enforcement of the criminal laws of

the District of Columbia‖ (internal quotation marks and citation omitted)); EEOC

v. Day & Zimmermann NPS, Inc., No. 15-cv-1416 (VAB), 2017 U.S. Dist. LEXIS

133918, at *21-22 (D. Conn. Aug. 22, 2017) (―[W]here Congress enacts a statute

that ‗define[s] an injury in fact to the United States,‘ and the statute shows that

‗Congress [has] determined that such conduct is harmful and should be prohibited,‘

then ‗a violation of that statute inherently constitutes an injury to the United

States.‘‖ (quoting Stauffer, 619 F.3d at 1325); Newt LLC v. Nestle USA Inc., No.

09-C-4792, 2011 U.S. Dist. LEXIS 32837, at *5 (N.D. Ill. Mar. 28, 2011) (―The

government always has standing to enforce its own laws[.]‖); Hy Cite Corp. v.

Regal Ware, Inc., No. 10-cv-168-wmc, 2011 U.S. Dist. LEXIS 55011, at *10-11

(W.D. Wis. Mar. 15, 2011) (―[I]t is unlikely the government has ever been denied

standing to enforce its own laws.‖); cf. In re Debs, 158 U.S. 564, 584 (1895)

(―Every government, entrusted by the very terms of its being with powers and

duties to be exercised and discharged for the general welfare, has a right to apply

to its own courts for any proper assistance in the exercise of the one and the

discharge of the other, and it is no sufficient answer to its appeal to one of those

courts that it has no pecuniary interest in the matter. The obligations which it is

under to promote the interest of all and to prevent the wrongdoing of one, resulting

in injury to the general welfare, is often of itself sufficient to give it a standing in

court.‖); Castillo v. Cameron County, 238 F.3d 339, 351 (5th Cir. 2001) (―Because

the State has a sovereign interest in enforcing its laws, it has a personal stake in

appealing [an] injunction that g[ave] the County discretion to violate those laws.‖).

26

concrete stake in the proper application of the laws of their jurisdiction, giving

them a sufficient basis for Article III standing in parens patriae cases,‖19 is

consistent with that case law. (This is an argument the District undeniably

advanced, though, as our dissenting colleague emphasizes, it was overshadowed by

the District‘s effort to show that it sufficiently asserted a quasi-sovereign interest

as articulated in Snapp.) Here, as in Stauffer, the parties have not cited — and our

own research has not uncovered — ―any case in which the government has been

denied standing to enforce its own law.‖20 619 F.3d at 1325. Indeed, when a

jurisdiction seeks to enforce its own laws, courts have treated the question of

standing as subsumed under the question of whether the entity or agency suing has

statutory enforcement authority21 — a matter that the Superior Court recognized as

the primary question before it, and which we address infra.

19

District‘s Brief at 13 n.2 (quoting Glanton ex rel. ALCOA Prescription

Drug Plan v. AdvancePCS Inc., 465 F.3d 1123, 1126 (9th Cir. 2006)).

20

This is not surprising; after all, the whole point of the constitutional

standing analysis is ―[t]o ensure the proper adversarial presentation,‖

Massachusetts v. EPA, 549 U.S. 497, 517 (2007), and ―assure[] the court that the

issues before it will be concrete and sharply presented.‖ Sec’y of State of

Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955 (1984).

21

See, e.g., Bhd. of Ry. & S.S. Clerks v. Florida E. Coast Ry. Co., 384 U.S.

238, 242 n.4 (1966) (―We have no doubt that the United States had standing to

bring this action [alleging that defendant railroad company violated the Railway

Labor Act by unilaterally promulgating a new labor agreement]‖ because statute

―ma[d]e[] it the duty of the United States attorney to ‗institute in the proper court

(continued…)

27

Our dissenting colleague faults us for looking to the District‘s complaint and

not stopping with rejection of the District‘s quasi-sovereign-interest theory of

standing. But, ‗―[f]or purposes [of our review of the Superior Court‘s] ruling on a

motion to dismiss for want of standing,‖‘ we, like the trial court, ‗―must accept as

true all material allegations of the complaint, and must construe the complaint in

favor of the complaining party.‖‘ Grayson, 15 A.3d at 232 (quoting Warth, 422

U.S. at 501); see also id. at 247-48 (analyzing whether Grayson had standing by

reviewing his allegations in the various paragraphs of his complaint). The

District‘s complaint alleges on its face that appellees have in place marketing

agreements that violate District of Columbia law, specifically, prohibitions set out

(…continued)

and to prosecute . . . all necessary proceedings for the enforcement‘ of [the section

of the Act the company was] charged with violating.‖ (emphasis added) (quoting

45 U.S.C. § 152 Tenth (1964 ed.)); EEOC v. Celadon Trucking Servs., No. 1:12-

cv-00275-SEB-TAB, 2015 U.S. Dist. LEXIS 84639, *31-33 (S.D. Ind. June 30,

2015) (holding that ―the EEOC . . . suffers an ‗injury‘ sufficient to give rise to

Article III standing when a violation of Section 102 of the [Americans with

Disabilities Act (―ADA‖)] occurs,‖ even if ―it cannot demonstrate that any of the

class members [on whose behalf it sued] suffered an ‗injury-in-fact‘ as a result of

the allegedly unlawful inquiries and examinations‖ and stating that the agency‘s

―standing to bring a suit challenging a violation of the ADA . . . stems directly

from . . . the EEOC‘s own statutory enforcement authority.‖).

28

in the RSSA. Those allegations by the District were sufficient to satisfy the injury-

in-fact element of Article III-type standing on the District. 22

22

Our dissenting colleague suggests that a statement by the Supreme Court

in United States v. San Jacinto Tin Co., 125 U.S. 273 (1888) — that a

government‘s ―right . . . to institute . . . a suit depends upon the same general

principles which would authorize a private citizen to apply to a court of justice for

relief,‖ id. at 285 — compels the conclusion that the District did not carry its

burden to establish standing to sue. Post, at 56. But, later that same year, the

Supreme Court clarified that San Jacinto established that ―the instrumentality of

the court cannot . . . be used . . . where the United States has no pecuniary interest

in the remedy sought, and is also under no obligation to the party who will be

benefited to sustain an action for his use, and also where it does not appear that

any obligation existed on the part of the United States to the public or to any

individual.‖ United States v. Am. Bell Tel. Co., 128 U.S. 315, 367 (1888)

(emphasis added). The Court further clarified that the United States‘s standing to

sue can be based on ―its obligation to protect the public from the monopoly of [a]

patent which was procured by fraud.‖ Id.; see also id. at 368 (holding for that

reason that the suit against American Bell to cancel fraudulent patents was ―not

excluded from the jurisdiction of the court by want of interest in the government of

the United States‖).

Whether appellees‘ marketing agreements actually cause the type of

concrete injury the trial court believed must be alleged to establish standing will be

a relevant consideration if the District succeeds on its claim that the agreements

violate § 36-303.01 (a) and the court goes on to consider whether to issue a

permanent injunction enjoining implementation of the offending terms of the

agreements. See Ifill v. District of Columbia, 665 A.2d 185, 188 (D.C. 1995)

(explaining that a permanent injunction requires the trial court to find that the

balance of equities favors the moving party, meaning that the court ―‗must look at

the interests of the parties who might be affected by the injunction and must also

examine whether the facts and the relevant law indicate that an injunction clearly

should be granted or denied apart from any countervailing interest‘‖ (brackets

omitted) (quoting Universal Shipping Co. v. United States, 652 F. Supp. 668, 675-

76 (D.D.C. 1987))). In determining whether to grant injunctive relief, the court

would have discretion to consider, for example, whether, as a result of the

offending marketing-agreement provisions, ―the price of ExxonMobil‘s fuel is too

(continued…)

29

Appellees suggested at oral argument that an additional reason why the

District‘s complaint on its face does not establish Article III-type standing is that

the RSSA already provides that marketing agreements that violate § 36-303.01 are

unenforceable. Therefore, appellees implied, the court can provide no additional

redress. We reject this argument. To be sure, to have Article III-type standing, a

plaintiff must assert an injury ―that is likely to be redressed by a favorable judicial

decision.‖ Spokeo, 136 S. Ct. at 1547. Here, the parties vigorously disagree about

whether § 36-303.01 (a)(6), correctly interpreted, actually prohibits the marketing-

agreement provisions the District claims are unlawful: appellees contend, and the

District disputes, that the second proviso of § 36-303.01 (a)(6) (―provided further

(…continued)

high at service stations.‖ The court would also have discretion to consider the

various arguments appellees advanced during the hearing before the trial court

(e.g., that if independent dealers move to purchase Exxon-branded gasoline from

third party-suppliers of Exxon-branded gasoline, the Distributors will raise the rent

on the independent dealers‘ leased premises, putting the dealers in no better

position than they were in before; and that, ―wors[t] case,‖ the Distributors,

seeking to avoid losses, will ―sell the gas station [properties] for [their] highest and

best use,‖ selling them for condominium development and putting the dealers out

of business). The court may also consider the arguments advanced by amicus Mid-

Atlantic Petroleum Distributors Association, Inc. (e.g., that dealers ―desire‖

exclusive dealing arrangements in order ―to obtain [distributors‘] needed

investments in their stations‖ and that injunctive relief ―could have an unintended

and unconscionably destructive effect upon [dealers‘] business . . . in the District

of Columbia for years to come,‖ including by disrupting benefits dealers derive

from current arrangements for the processing of debit and credit card transactions).

30

that the retail dealer shall neither represent such motor fuels or products as having

been procured from the distributor nor sell such motor fuels or products under the

distributor‘s trademark‖) permits them to require the franchisee retail service

stations to purchase all their Exxon-branded gasoline from Anacostia or

Springfield. The dispute is a live one — appellees themselves acknowledge that

this case represents a continued effort by the Attorney General to address alleged

injury to competition in the gasoline market in the District — and the declaratory

relief the District seeks would resolve the dispute. Thus, contrary to appellees‘

argument, a ruling by the court on this issue would not be a mere advisory opinion

about the lawfulness of possible future circumstances. Similarly, the injunctive

relief the District seeks would not merely preclude appellees from enforcing the

challenged marketing agreements in the courts, but presumably could require

affirmative rewriting of the marketing agreements and perhaps restructuring of the

parties‘ relationships.

For the foregoing reasons, we conclude that the Superior Court erred in

dismissing the complaint for lack of standing.23

23

Appellees contend that, far from prohibiting the specific marketing-

agreement terms the District alleges are unlawful, § 36-303.01 (a)(6) ―explicitly

prohibits retail dealers from selling motor fuels purchased from third-parties under

the . . . Exxon trademark.‖ We need not address this argument because a claimed

(continued…)

31

B. Whether the District, Through Its Attorney General, Has

Authority to Sue to Enforce Marketing Agreement Prohibitions

Set Out in the RSSA

We next address whether the District, through its Attorney General, has

authority under District of Columbia law to seek judicial relief for (alleged)

violations of D.C. Code § 36-303.01 (a)(6) and (11). Our analysis focuses on

whether the Council expressly or by clear implication has authorized the Attorney

General to maintain an action such as this to enforce D.C. Code § 36-303.01 (a)(6)

and (11) (or whether instead the language and legislative history of the RSSA by

implication preclude the Attorney General from maintaining this action).

(…continued)

―defect in the merits of a party‘s claim is not the basis upon which to determine

standing.‖ Wilderness Soc’y v. Norton, 434 F.3d 584, 595 (D.C. Cir. 2006) (noting

also that ―‗no court in the modern era has treated a garden-variety substantive

defect in [a party‘s] claim as defeating redressability.‘‖ (quoting Mountain States

Legal Found. v. Glickman, 92 F.3d 1228, 1234 (D.C. Cir. 1996))); see also

Grayson, 15 A.3d at 249-52, 249 n.97 (explaining that plaintiff Grayson, who

―allege[d] . . . injury in fact[] based on the defendants‘ violation of his statutory

right [under D.C. Code § 28-3904 (2003)] to the disclosure of information,‖ had

standing ―to require the court to consider whether he is correct that the [statute]

endows a consumer with a right to such information,‖ ―even if the court would

answer [that question] in the negative‖; ultimately holding, however, that

Grayson‘s complaint failed to ―allege[] the elements of viable claims‖ under § 28-

3904 and that his complaint was therefore ―legally insufficient to withstand a

Super. Ct. Civ. R. 12 (b)(6) motion‖).

32

Appellees argue, and the trial court ruled, that the RSSA must be interpreted

as affording retail service stations an exclusive right to enforce the RSSA

marketing-agreement provisions involved in this suit. Appellees asserted in the

trial court that ―[n]o statutory authority exists for the Mayor, the District, or the

Attorney General to enforce any provision of Subchapter III of the RSSA.‖ There

are several reasons why we reject these arguments and the trial court‘s conclusion.

1. The Statutory Authority of the District’s Independent Attorney General

We begin by describing the general statutory authority of the Attorney

General and contrasting that authority to the authority formerly conferred on the

District‘s chief legal officer. Prior to 2010, the ―conduct of all law business of

the . . . District‖ was the responsibility of a chief legal officer — originally called

the ―Corporation Counsel‖ but renamed the ―Attorney General‖ in 2004 pursuant

to a Mayor‘s Order24 — who was ―under the direction of the Mayor.‖ E.g., D.C.

24

See Mayor‘s Order No. 2004-92, 51 D.C. Reg. 6052 (June 11, 2004)

(providing also that ―[a]ll references in statutes, regulations, rules, and orders to the

‗Office of the Corporation Counsel,‘ the ‗Corporation Counsel,‘ and ‗Assistant

Corporation Counsels‘ shall henceforth refer, respectively, to the Office of the

Attorney General for the District of Columbia, the Attorney General for the

District of Columbia, and Assistant Attorneys General for the District of

Columbia‖).

33

Code § 1-301.111 (2009);25 D.C. Code § 1-361 (2000); D.C. Code § 1-301 (1973).

In 2010, the Council passed D.C. Law 18-160, reforming the power of the

Attorney General for the District of Columbia.26 As of the effective date of the

25

Section 1-301.111 provided:

The Corporation Counsel [now the Attorney General for

the District of Columbia] shall be under the direction of

the Mayor, and have charge and conduct of all law

business of the said District, and all suits instituted by

and against the government thereof. He shall furnish

opinions in writing to the Mayor, whenever requested to

do so. All requests for opinions shall be transmitted

through the Mayor, and a record thereof kept, with the

opinions, in the Office of the Executive Secretary of the

Mayor. He shall perform such other professional duties

as may be required of him by the Mayor.

Sections 1-361 (2000) and 1-301 (1973) read essentially the same, except for

the reference to ―[now the Attorney General for the District of Columbia].‖

Section 1-301 used the term ―Commissioner‖ instead of ―Mayor.‖

26

See 57 D.C. Reg. 6022 (July 16, 2010); 57 D.C. Reg. 3012 (Apr. 9,

2010); see also D.C. Council, Comm. on Pub. Safety & Judiciary, Report on Bill

No. 18-65 at 1-2 (Dec. 16, 2009) (the ―2009 Report‖) (stating that the legislation,

which ―codifies the institutional independence‖ of the office, ―provide[s] greater

structural independence‖ of the position, and makes clear that the Attorney General

is ―to act as the public interest requires‖). A part of the legislation described

making the position of Attorney General an elected position rather than an

appointed one. See Zukerberg v. District of Columbia Bd. of Elections & Ethics,

97 A.3d 1064, 1068 (D.C. 2014). However, ―[b]ecause the Council is not

empowered to amend the [District of Columbia Home Rule] Charter directly, the

part of the bill proposing this change (Title II) was effectively a request for

Congress to do so.‖ Id. Because Congress took no action to provide for election

of the Attorney General after the legislation was transmitted to it, the Council

decided to seek to amend the Charter by means of a voter referendum. Id. at 1069-

(continued…)

34

2010 legislation, the authority and duties of the Attorney General for the District of

Columbia are as follows:

(a)(1) The Attorney General for the District of

Columbia . . . shall have charge and conduct of all law

business of the said District and all suits instituted by and

against the government thereof, and shall possess all

powers afforded the Attorney General by the common

and statutory law of the District and shall be responsible

for upholding the public interest. The Attorney General

shall have the power to control litigation and appeals, as

well as the power to intervene in legal proceedings on

behalf of this public interest.

...

(b) The authority provided under this section shall not be

construed to deny or limit the duty and authority of the

Attorney General as heretofore authorized, either by

statute or under common law.

D.C. Code § 1-301.81 (a)(1), (b) (emphasis added). The Committee Report to the

legislation cited with approval case law explaining that:

[The] duties and powers [of the Attorney General]

typically are not exhaustively defined by either

constitution or statute but include all those exercised at

common law. There is and has been no doubt that the

legislature may deprive the attorney general of specific

powers; but in the absence of such legislative action, [the

Attorney General] typically may exercise all such

authority as the public interest requires. And the

(…continued)

70. The Charter Amendment proposal providing for election of the Attorney

General was presented to voters as part of the general election held on November

2, 2010, and the amendment was approved by a majority of the electorate and

became law after the period of congressional review. Id. at 1070.

35

attorney general has wide discretion in making the

determination as to the public interest.

2009 Report at 4 (quoting Florida ex rel. Shevin v. Exxon Corp., 526 F.2d 266,

268-69 (5th Cir. 1976) (emphasis added); see also id. at 4 n.13 (endorsing a

statement by the National Association of Attorneys General that ―the common law,

if not expressly limited by constitution, statute, or judicial decision, provides

power crucial to the fulfillment of an Attorney General‘s responsibility‖). The

Report states that the common-law powers of the Attorney General, ―including the

right to act on behalf of the public interest, indisputably flow with the

position . . . absent specific constitutional or statutory guidance to the contrary.‖

Id. at 4. Further, noting that a September 2008 memorandum prepared by D.C.

Appleseed ―helped to shape the current Committee Print,‖ id. at 2, the Report

explains (with approval) that according to D.C. Appleseed‘s research:

[T]he common law powers of the Attorney General for

the District of Columbia stem from Maryland common

law as the District is derived from land ceded by that

jurisdiction in 1801. As such, the law in existence in

Maryland – including the common law – at that time

became the law of the District. These common law

powers . . . have since been specifically modified for the

Maryland Attorney General through the acts of the state‘s

General Assembly. However, no such deprivation of

common law authority has been achieved through the

District‘s Charter or through statute.

While common law powers, once assumed, could be

abrogated by statute doing so would need to be explicit.

36

A careful review of the District‘s Charter, and relevant

statutory provisions pertaining to the Attorney General‘s

authority, clearly reveal that no such deprivation has been

achieved or attempted.

Id. at 5 (internal footnotes, quotation marks, and alteration omitted). The Council

believed that the legislation would allow the Attorney General ―to proceed with

confidence by making clear in the law that he or she is the lawyer for the District

of Columbia and is thus to act as the public interest requires.‖ Id. at 2.

In sum, the legislative history of the current District of Columbia statute

describing the powers of the Attorney General expresses in unequivocal terms the

intent of the Council and the District of Columbia electorate that the District‘s

Attorney General would be independent, and the intent of the Council that the

Attorney General, no longer limited to being ―under the direction of the Mayor,‖

would have broad power to ―exercise all such authority as the public interest

requires‖ and ―wide discretion‖ in determining what litigation to pursue to

―uphold[] the public interest,‖ ―absent specific constitutional or statutory guidance

to the contrary.‖27 Id. at 4. As the District put it in its brief opposing appellees‘

27

One source of ―guidance to the contrary‖ is D.C. Code § 23-101 (2012

Repl.), which assigns to the Attorney General of the District of Columbia

responsibility to prosecute ―violations of all police or municipal ordinances or

regulations and . . . violations of all penal statutes in the nature of police or

(continued…)

37

motion to dismiss, and as its counsel re-asserted at oral argument, under § 1-301.81

(a), the ―Attorney General thus has the responsibility, and the authority, to ‗uphold

the public interest‘ in D.C. by litigating on behalf of the public.‖ (The District ―is

responsible for upholding the public interest‖ under ―D.C. Code § 1-301-81 (a).‖)

The Council understood that the Attorney General‘s powers in this regard could be

curtailed legislatively only by statutes expressly abrogating his or her authority in

specific contexts, and directed that (whatever limitations on the power of the

Attorney General had previously been understood to exist) the revised statement of

his authority was not to be ―construed to deny or limit [his] duty and authority‖ as

established under statute or common law.28 At least two conclusions flow from

(…continued)

municipal regulations, where the maximum punishment is a fine only, or

imprisonment not exceeding one year‖ as well as violations ―relating to disorderly

conduct‖ or to ―lewd, indecent, or obscene acts,‖ id. § 23-101 (a) and (b); and

which provides, in § 23-101 (c), that ―[a]ll other criminal prosecutions shall be

conducted in the name of the United States by the United States attorney for the

District of Columbia or his assistants, except as otherwise provided by law.‖

28

Appellees suggested at oral argument that to recognize this broad power

of the District‘s Attorney General under § 1-301.81 would make ours ―the first

court to hold that an attorney general of a state can sue under any statute without

statutory authority.‖ But § 1-301.81, especially as understood in light of its

accompanying Committee Report, itself establishes the requisite statutory authority

(meaning that our analysis is most certainly not ―ahistorical and atextual,‖ as the

dissent charges), and case law from numerous other jurisdictions likewise

recognizes ―a broad grant of authority [to the Attorney General,] which includes

the power to act to enforce [the state‘s] statutes.‖ Botelho ex rel. Members of

Alaskan Sports Bingo Joint Venture v. Griffin, 25 P.3d 689, 692 (Alaska 2001)

(continued…)

38

(…continued)

(―Under the common law, the attorney general has the power to bring any action

which he thinks necessary to protect the public interest, a broad grant of authority

which includes the power to act to enforce Alaska‘s statutes.‖); see, e.g.,

Commonwealth ex rel. Beshear v. Commonwealth Office of the Governor ex rel.

Bevin, 498 S.W.3d 355, 366 (Ky. 2016) (―It is [the] discretionary duty [of the

Attorney General] to choose those legal matters in the area of public litigation or

quasi-judicial administration in which he believes it is his official duty to

intervene, except in those instances when it is mandated by the legislature for him

to intervene or to refrain from intervening. If he is mistaken in his legal advocacy,

the courts and quasi-judicial tribunals always retain the power to rule against him

and often do on the merits but this power does not affect his standing to become a

party of interest in the cause or proceeding.‖ (internal quotation marks omitted));

State ex. Rel. Attorney Gen. v. Burning Tree Club, Inc., 481 A.2d 785, 797 (Md.

1984) (recognizing that in states where the Attorney General possesses common-

law powers, he ―has broad authority to initiate those suits which he believes are

necessary to uphold the public interest‖); State ex rel. Bingaman v. Valley Sav. &

Loan Ass’n, 636 P.2d 279, 281 (N.M. 1981) (discussing a provision of state law

that renders due-on-sale clauses unenforceable and holding that ―[i]t is clear that

the attorney general not only has standing to bring this lawsuit [to enforce the due-

on-sale law], but also has the power and the duty to do so‖ pursuant to his

―discretion in determining when the public interest requires him to bring a civil

action on behalf of the state‖); Lowell Gas Co. v. Attorney Gen., 385 N.E.2d 240,

247-48 (Mass. 1979) (explaining, in response to an argument that ―the Attorney

General lacks standing [without] . . . a statutory grant of standing,‖ that the

Attorney General‘s consumer fraud allegations ―were appropriately brought . . . in

accord with the Attorney General‘s common law duty to represent the public

interest‖); Mundy v. McDonald, 185 N.W. 877, 880 (Mich. 1921) (―A broad

discretion is vested in [the Attorney General] in determining what matters may, or

may not, be of interest to the people generally.‖); see also Associated Builders &

Contractors, Saginaw Valley Area Chapter v. Perry, 115 F.3d 386, 390 (6th Cir.

1997) (citing authority under Michigan law that a court ―should only prohibit the

Attorney General from . . . bringing an action when to do so ‗is clearly inimical to

the public interest‘‖); Shell Oil, 608 F.2d at 212 (―[W]e believe it is not fanciful to

suppose that the state courts of Rhode Island would permit the Rhode

Island . . . Attorney General to bring an action pursuant to [the State‘s Motor Fuel

Distribution and Sales Act] to enjoin a refiner from unlawfully discriminating in

the price he charges for petroleum, or to enjoin a wholesaler or reseller from

(continued…)

39

this and from the Attorney General‘s legislative mandate to ―uphold[] the public

interest‖ and to ―act as the public interest requires.‖

First, the independence of the Attorney General from the Mayor and the

Attorney General‘s Council-recognized authority to ―exercise all such authority as

the public interest requires,‖ 2009 Report at 4, mean that the individual holding

that office has enforcement authority that may go beyond that conferred by statute

on the Mayor.29 To put a finer point on it, the independence of the Attorney

General and his authority and responsibility to control or intervene in litigation as

the public interest requires mean that even if the Council, in passing the RSSA in

1977,30 intended to limit the enforcement authority of the Mayor — and thereby

the enforcement authority of the Corporation Counsel or the pre-2010 Attorney

(…continued)

selling at retail level for less than four cents below his wholesale price [even

though the Act explicitly authorizes suits only by franchisees or distributors].‖).

29

Thus, although perhaps interchangeable for some purposes, the terms

―Mayor‖ and ―Attorney General‖ are not entirely interchangeable. It was

misleading for the trial court to ―refer[] to D.C. Attorney General and Mayor

interchangeably when referring to the District official responsible for enforcing the

[RSSA].‖

30

See 24 D.C. Reg. 2371 (Sept. 30, 1977).

40

General, who served ―under the direction of the Mayor‖31 — to Subchapters II and

IV of the RSSA, and intended not to authorize those public officials to enforce

Subchapter III, it does not follow that the enforcement authority of the now-

independent Attorney General is so limited.

Second, the Council‘s statement that any abrogation or curtailment of the

Attorney General‘s common-law powers ―would need to be explicit‖ means that it

was a misstep for the trial court to give the great weight it gave to the facts that the

RSSA contains no explicit affirmative statutory authority for the Attorney General

to enforce D.C. Code § 36-303.01 (a)(6) and (11) and likewise does not grant

enforcement rights to ―any person‖ aggrieved by a violation of the statute. As the

District argues, ―[t]hat [approach] gets the analysis backwards with regard to

injunctive [and declaratory] relief, for which the question should be whether the

legislature has affirmatively precluded a parens patriae suit‖ by the Attorney

General.32 The fact that the RSSA does not create an express right of action (and

31

See District of Columbia v. Pryor, 366 A.2d 141, 143 (D.C. 1976)

(―Subservience to the chief executive officer of the District government is the

major thesis of this [―under the direction of the [Mayor]‖] provision.‖ (citing D.C.

Code § 1-301 (1973)).

32

We note by way of analogy that ―states have frequently been allowed to

sue in parens patriae [for injunctive relief] to . . . enforce federal statutes

that . . . do not specifically provide standing for state attorneys general.‖ People ex

(continued…)

41

may not include an implied right of action) for the Attorney General to enforce

§ 36-303.01 (a) does not answer the question of whether the Attorney General may

do so pursuant to his statutory power and duty to uphold the public interest, as

recognized (or established or reinstated) by D.C. Code § 1-301.81 (a)(1) and (b).

In its opposition to appellees‘ motion to dismiss, the District made a similar point,

(…continued)

rel. Vacco v. Mid Hudson Med. Grp., P.C., 877 F. Supp. 143, 146 (S.D.N.Y.

1995); see Snapp, 458 U.S. at 609 (holding that Puerto Rico could ―pursue the

interests of its residents in the Commonwealth‘s full and equal participation in the

federal employment service scheme established pursuant to the Wagner-Peyser Act

and the Immigration and Nationality Act,‖ without ever analyzing whether the

underlying statutes permitted a State to sue).

Courts have refused to permit States (as well as others) to sue to enforce

rights under a federal statute where Congress‘s carefully crafted and detailed

enforcement scheme ―carefully limits the parties who may seek relief.‖

Connecticut v. Physicians Health Servs. of Connecticut, Inc., 287 F.3d 110, 113

n.2, 121 (2d Cir. 2002) (holding that State was not permitted to sue to enforce

various provisions of the ERISA statute, which broadly authorizes suits by the

Secretary of Labor and by an ERISA plan ―participant, beneficiary, or

fiduciary . . . to enjoin any act or practice which violates any provision of this

subchapter,‖ but also precludes the Secretary from enforcing one specified

provision and authorizes States to enforce one other specified provision, see 29

U.S.C. § 1132 (a)(3), (5), (7) and (b)(2) (citing Pressroom Unions-Printers League

Income Sec. Fund v. Cont’l Assurance Co., 700 F.2d 889, 893 (2d Cir. 1983)

(ruling that pension plans are not permitted to sue to enforce the ERISA statute))).

And even where a State may sue for injunctive relief, suits for money damages

may be precluded. See Hawaii v. Standard Oil Co., 405 U.S. 251, 263-64 (1972)

(reasoning that to permit both a State and its citizens to sue for damages ―would

open the door to duplicative recoveries‖).

42

arguing that its ―enforcement authority is implied [even] in the absence of express

authority [in the RSSA] to sue.‖

2. The RSSA

In this section, we address appellees‘ argument that there is an affirmative

statutory preclusion of enforcement action by the Attorney General because, under

the RSSA, authority to enforce Subchapter III purportedly ―is vested exclusively in

service station dealers.‖

D.C. Code § 36-303.06 (a) provides in relevant part:

(a) (1) In addition to any and all other remedies available

to the retail dealer under this subchapter, the marketing

agreement, any other statute or act, or law or equity, a

retail dealer may maintain a civil action against a

distributor for:

(A) Failure to make such disclosures as are

required by § 36-303.02;

(B) Failure to repurchase as required by

§ 36-303.04 (b);

(C) Failure to pay the full value of any business

goodwill as required by § 36-303.04 (d);

(D) Wrongful or illegal cancellation of,

termination of, or failure to renew a marketing agreement

with the retail dealer under § 36-303.03;

43

(E) Unreasonably withholding approval of a

proposed sale, assignment, or other transfer of the

marketing agreement.

(2) The court may award actual damages, including

ascertainable loss of goodwill as provided for in

§ 36-303.04 (d), sustained by the retail dealer as a result

of the distributor‘s violation of this subchapter and may

also grant such other legal or equitable relief as may be

appropriate, including, but not limited to, declaratory

judgment, specific performance, and injunctive relief.

D.C. Code § 36-303.06 (a)(1)-(2).33

We take appellees‘ point that, as originally codified, § 36-303.06, now

entitled ―Civil actions,‖ was entitled ―Retail Dealer‘s Cause of Action Against

Distributor,‖ and that the provision now codified as subparagraph (a)(2) was an

unnumbered part of subsection (a) — a history that indicates that § 36-303.06

describes remedies available to retail dealers, not remedies more generally

available. However, as the District emphasizes, the RSSA provides no express

authority for anyone – retailers or anyone else – to enforce the marketing-

33

The ―other remedies available to the retail dealer under this subchapter,‖

§ 36-303.06 (a)(1), include non-judicial remedies described in § 36-303.04

(distributor-repurchase, equipment-removal, and compensation-for-loss-of-

goodwill remedies, which themselves are ―in addition to any and all other remedies

available to the retail dealer under this subchapter, the marketing agreement, any

other statute or act, or law or equity‖).

44

agreement restrictions of § 36-303.01 (a). Nevertheless, in Davis v. Gulf Oil

Corp., 485 A.2d 160 (D.C. 1984), this court expressed ―certain[ty]‖ that the

Council ―intended to permit franchisees to seek relief from franchisors‘ violations

of [the provision now codified as § 36-303.01 (a)(10) (prohibiting marketing

agreements that are for a term of ―less than 1 year‖)],‖ even though neither § 36-

303.06 (a) nor any other section of the RSSA ―expressly provide[s] any remedy for

a violation of‖ the provision. 485 A.2d at 171 n.12. We did so notwithstanding

the statement in the 1976 Report that the legislation would give retail dealers ―a

civil cause of action against the distributor in certain circumstances.‖ 1976 Report

at 59 (emphasis added). Thus, this court has already construed the RSSA as

implying a cause of action to enforce one of the § 36-303.01 (a) marketing-

agreement prohibitions despite the lack of express authority for anyone to enforce

those provisions. Construing the RSSA to permit the District, through its Attorney

General, to enforce § 36-303.01 (a)(6) and (11) can hardly be the unwarranted leap

the trial court, appellees, and our dissenting colleague insist it would be. This is

especially so given that, according to the District‘s complaint, the alleged

exclusive-dealing arrangements are the product of multiple agreements (between

Exxon and the distributors/franchisors, and between distributors and retail service

station franchisees). Section § 36-303.06 (a), which expressly authorizes certain

civil suits by retailers against their distributors suggests nothing about who should

45

have authority to sue distributors and their suppliers to enjoin exclusive-dealing

arrangements that allegedly violate § 36-303.01 (a)(6) and (11). Moreover, any

suggestion that the Council intended to authorize only retailers to bring such suits

is undermined by the Council‘s express recognition, in enacting the RSSA, that a

retail dealer ―because of his limited resources‖ may be ―ill equipped to sue . . . a

financially powerful petroleum company.‖ 1976 Report at 27.34

Appellees argue, however, that § 36-302.05 cabins the authority of the

District to sue to enforce the RSSA by describing the Mayor‘s enforcement

authority as to Subchapters II and IV while omitting mention of Subchapter III.

Section 36-302.05 (a) provides that:

The Mayor shall . . . cause a written order to be served

upon such person [who ―violat[es] any provision of

subchapter II or IV of this chapter‖] directing such

person to immediately cease and desist from continuing

such violation. If the person so ordered refuses or fails to

comply with such order, the Mayor shall be authorized to

apply to any court of competent jurisdiction for a

temporary restraining order, preliminary injunction, or

permanent injunction restraining such person from

continuing such violation.

34

We note that Davis was not a suit brought by a retail-dealer franchisee; it

originated as a suit by franchisor Gulf Oil to recover possession of the leased retail

service station premises. See 485 A.2d at 162.

46

For the reasons already discussed in section B.1 above (relating to the

independence of the Attorney General), we conclude that the RSSA provision

describing the authority of the Mayor to sue does not address, and a fortiori does

not limit, the authority of the Attorney General. We note in addition that the

context of § 36-302.05 (a) is provisions in Subchapters II and IV that call for

filings with or notice to the Mayor (see § 36-302.01 (a)-(b) (2012 Repl.) and § 36-

302.04 (d) (2012 Repl.)), and establish the Mayor‘s power to adopt regulations to

implement Subchapters II and IV (see § 36-302.04 (c)) and to grant (and, by

implication, to withhold) exemptions from prohibitions established by the two

Subchapters (see § 36-302.04 (a)-(b) and § 36-304.01 (2012 Repl.)). These

provisions that establish an RSSA-implementation role for the Mayor are a logical

explanation for the specification of the Mayor‘s authority to seek enforcement of

Subchapters II and IV. A logical explanation for the absence of a provision

authorizing the Mayor to seek enforcement of Subchapter III is that there are no

comparable provisions specifying an RSSA-implementation role for the Mayor in

Subchapter III. That implies nothing about whether there is a role for the

independent Attorney General in suing to remedy what are alleged to be

―widespread and systematic‖ violations of Subchapter III.

47

We conclude that the RSSA is not crafted in such a way as to compel a

conclusion that the District‘s independent Attorney General is affirmatively

precluded from seeking enforcement of § 36-303.01 (a)(6) and (11) in order to

eliminate what the District alleges are widespread and systematic violations of

those provisions of Subchapter III of the RSSA. And, more important (and

perhaps dispositive) in light of the discussion in section B.1 above, the statute does

not contain the clear expression of a legislative intent to curtail the Attorney

General‘s enforcement powers. Such a clear expression would be necessary for us

to conclude that the independent Attorney General is foreclosed by the RSSA from

exercising his statutorily recognized common-law power to sue, in pursuit of what

he believes the public interest requires, to enforce the RSSA marketing-agreement

provisions that the Council determined were both necessary to foster a competitive

gasoline market for the benefit of consumers and ―in the interests of the public

health, safety, and welfare.‖35

35

D.C. Code § 36-305.01 (stating that ―[t]his chapter shall constitute a

statement of the public policy of the District of Columbia‖ and that ―[t]he

provisions of this chapter shall be liberally construed in order to effectively carry

out the purposes of this chapter in the interests of the public health, safety, and

welfare‖).

48

Nor can we agree with the trial court that the Council ―deliberately‖ and

―consciously chose‖ to withhold from the Attorney General the authority to

enforce Subchapter III of the RSSA when it declined or failed to adopt the 2011

and 2014 proposed amendments that would have given the Attorney General not

merely express authority to sue to enforce the RSSA, but also, inter alia, pre-

complaint investigatory subpoena authority and authority to recover civil penalties.

With the exception of one member, the Council that failed to pass Bill 19-299 in

2011 was identical to the Council that passed the 2010 legislation that recognized

the broad powers of the Attorney General.36 For that reason,37 the

Councilmembers‘ failure to pass Bill 19-299 is just as consistent with an

explanation that they understood that the Attorney General already possessed

power to sue for declaratory and injunctive relief to enforce all of the provisions of

the RSSA in pursuit of the public interest as it is with the inference (i.e., that the

Council ―did not intend to confer authority on the District to enforce‖ Subchapter

36

See the lists of members of the Council of the District of Columbia set

out in the District of Columbia Official Code, 2010 Supplementary Pamphlet for

Volume 2 Title 1, at III; and District of Columbia Official Code, 2011

Supplementary Pamphlet for Volume 2 Title 1, at III.

37

Cf. Jackson v. District of Columbia Bd. of Elections & Ethics, 999 A.2d

89, 106 (D.C. 2010) (en banc) (taking into account that ―the Council that authored

and, in April 1978, began consideration of the bill that became the [Initiative

Procedures Act] was largely the same Council that passed the [Charter

Amendments Act] in May 1977‖).

49

III of the RSSA) that appellees draw from the failed 2011 legislation. Moreover —

and this applies with respect to both the failed 2011 legislation and the similar

2014 legislation on which the Council took no action — as the Supreme Court has

admonished, ―[f]ailed legislative proposals are a particularly dangerous ground on

which to rest an interpretation of a prior statute,‖ because ―[a] bill can be proposed

for any number of reasons, and it can be rejected for just as many others.‖38 Solid

Waste Agency of N. Cook Cty. v. United States Army Corps of Eng’rs, 531 U.S.

159, 169-70 (2001) (internal quotation marks omitted); see also In re McBride, 602

A.2d 626, 637 (D.C. 1992) (―Various considerations of parliamentary tactics and

strategy might be suggested as reasons for the inaction of . . . Congress, but they

would only be sufficient to indicate that we walk on quicksand when we try to find

in the absence of corrective legislation a controlling legal principle.‖ (quoting

Helvering v. Hallock, 309 U.S. 106, 121 (1940))).

Finally, appellees emphasize legislative-history language stating that RSSA

Subchapter III (contained in Title II of the Act) ―deals exclusively with private

rights.‖ 1976 Report at 64. This language appears in a section of the 1976 Report

that addresses the Title‘s expected ―budgetary impacts‖ on the District and follows

38

The District‘s brief explains that a controversial aspect of Bill 19-299 was

a provision that would have prevented distributors from operating gasoline stations

in the District.

50

a discussion of the budgetary impact of Titles I and III, which impose regular

duties and responsibilities on the District of Columbia government to process

informational statements, process exemption requests, promulgate rules and

regulations, and perform other enforcement actions. Id. at 63-64 (stating that Title

II, by contrast, ―should have negligible budgetary impacts on the District‖ since it

pertains to ―private rights‖). Elsewhere, however, in a non-―Fiscal Impact‖ section

of the 1976 Report, the Council stated that the provisions of Title II of the RSSA

are designed in part ―to protect the general public.‖ Id. at 29. Moreover, the

Council found that non-competitive practices, including the ―functional exclusive

dealing arrangement[s]‖ prohibited by Title II, id. at 53, would ―continue to have

severe detrimental impacts on consumers in the District of Columbia,‖ id. at 19,

and that the new legislation would ―enhance competition‖ to the benefit of

consumers, id. at 22. In addition, as already noted, the Council decreed that the

provisions of the RSSA ―constitute a statement of the public policy of the District

of Columbia‖ and are ―in the interests of the public health, safety, and welfare.‖

D.C. Code § 36-305.01. These expressions of legislative intent persuade us that

dismissal of the District‘s suit cannot be justified on the ground that the RSSA

provisions appellees allegedly violated pertain exclusively to retail dealers‘ and

franchisors‘ ―private rights‖ (so as to preclude the claimed cause of action).

51

For all the foregoing reasons, we conclude that the language and legislative

history of the RSSA neither require nor support a conclusion that the Council

meant to deny the Attorney General the authority to enforce D.C. Code § 36-

303.01 (a)(6) and (11).

***

The trial court erred in dismissing the complaint for (1) the District‘s

purported lack of standing and (2) the Attorney General‘s lack of express statutory

authority to enforce D.C. Code § 36-303.01 (a). Wherefore, the judgment of the

Superior Court is reversed, and the matter is remanded for further proceedings.

So ordered.

EASTERLY, Associate Judge, dissenting: The District sued the defendants in

this case alleging a theory of standing that this division rejects: relying on Alfred

L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982), the District

asserted it had ―parens patriae standing based on its quasi-sovereign interest in the

economic well-being of D.C.‘s gasoline consumers and the gasoline market.‖

Although the burden to establish standing to sue is on the plaintiff, and injury to a

quasi-sovereign interest under Snapp is the only theory of standing that the District

52

ever advanced in the trial court or this court, the majority opinion holds that the

trial court ―erred‖ when it granted the defendants‘ motion under Superior Court

Civil Rule 12 (b)(1) to dismiss the District‘s complaint for lack of standing. Ante

Part III.A. The majority opinion reaches this conclusion because it identifies a new

sovereign interest theory of standing for the District—new not merely to this case,

but to the law.

Under the majority opinion‘s new theory, the District has standing to sue

whenever there is a D.C. Code provision the District believes is being violated.

Relying on an array of inapposite cases, the majority opinion reasons that the

District has a sovereign interest in the enforcement of every D.C. Code provision.

Ante note 17. Under this logic, no statutory analysis or particularized inquiry into

the District‘s injury is necessary: it is immaterial that the statutory provision at

issue in this case only modifies common law contract rules between private parties.

(In a footnote, the majority opinion indicates that there may be limits on permitting

the District to act on every statutory violation, but whatever those limits are, in the

view of the majority opinion, they do not matter in this case. See infra note 22.)

Procedurally and substantively, the majority opinion‘s analysis is

problematic. First, because the plaintiff has the burden to show standing, this court

53

should not articulate for the District government a sovereign interest theory of

standing that it has never pursued. Second, in light of our adoption of the Article

III standing requirement that parties show concrete and particularized injury, this

court should not adopt a sovereign interest theory of standing that so abstracts the

Article III interest as to make the jurisdictional requirement of standing ineffectual

when the District government, represented by the Attorney General, is the plaintiff,

and that allows this court to disregard the prerogative of the legislature to

statutorily define government interests.

The majority opinion also concludes that the trial court erred when it granted

the defendants‘ motion to dismiss under Superior Court Civil Rule 12 (b)(6)

because the District failed to identify a cause of action, either express or implied,

in Subchapter III of the RSSA. Again, the majority opinion raises an argument

that the District has never made and inverts the legal analysis for the government:

although we have always required plaintiffs to show they have an express or an

implied cause of action to survive a 12 (b)(6) challenge, and although the District

has failed to show that it has either under Subchapter III of the RSSA, the majority

opinion concludes that the District—when represented by the Attorney General—

presumptively has a right to sue in the public interest unless the statute under

54

which the District seeks to sue expressly denies that authority to the Attorney

General.

To support this proposition, the majority opinion looks to the 2010 Attorney

General for the District of Columbia Clarification and Elected Term Amendment

Act, D.C. Act 18-351 (―2010 Attorney General Act‖) (codified, as modified, at

D.C. Code § 1-301.81 et seq. (2013 Repl.)), and concludes that, when the Council

of the District of Columbia (―Council‖) ―clarified‖ that the mayorally-appointed

Attorney General had an independent obligation to act in the public‘s interest—not

merely in the interest of the Mayor who had appointed him—it also gave the

Attorney General powers that he previously did not possess to sue in the public

interest. The majority opinion engages in a statutory analysis that is supported

neither by the text nor the historical record. Thus, even if I agreed that we should

look to the 2010 Attorney General Act instead of Subchapter III of the RSSA to

identify the District‘s cause of action, I see nothing in that statute indicating that

the District, via its Attorney General, has a broad right to sue to enforce any statute

(and hence Subchapter III of the RSSA) in the public interest.

Because the trial court did not err in dismissing the District‘s case either for

lack of standing or for failure to identify a cause of action, I respectfully dissent.

55

I. Standing: The 12 (b)(1) Ruling

A. The Plaintiff’s Burden To Establish Standing

The majority opinion correctly acknowledges that standing is a threshold

jurisdictional question, see Grayson v. AT & T Corp., 15 A.3d 219, 229 (D.C.

2011) (en banc), and that, although this court was created by Congress under

Article I of the Constitution, we have adopted the three-part test for standing used

in Article III courts: injury-in-fact, causation, and redressability. UMC

Development, LLC v. District of Columbia, 120 A.3d 37, 42–43 (D.C. 2015). But

the majority opinion nowhere acknowledges that the plaintiff, whether a private

individual or a government entity, bears the burden to establish that these three

criteria are satisfied.1 Id. (―The plaintiff bears the burden to establish standing.‖

(citing Grayson, 15 A.3d at 246)); accord Spokeo, Inc. v. Robins, 136 S. Ct. 1540,

1547 (2016) (―The plaintiff, as the party invoking federal jurisdiction, bears the

burden of establishing [the three] elements [of standing].‖); Lujan v. Defs. of

Wildlife, 504 U.S. 555, 561 (1992) (―The party invoking federal jurisdiction bears

1

The majority opinion instead emphasizes that this court must construe all

factual allegations in the complaint in the District‘s favor. Ante p. 27. This

proposition is unquestionably correct, but it does not permit us to raise new legal

theories of standing on the District‘s behalf.

56

the burden of establishing the [Article III] elements [of standing] . . . [which] are

not mere pleading requirements but rather an indispensable part of the plaintiff‘s

case.‖); United States v. San Jacinto Tin Co., 125 U.S. 273, 285 (1888) (―[T]he

right of the government . . . to institute . . . a suit depends upon the same general

principles which would authorize a private citizen to apply to a court of justice for

relief . . . .‖).2 A court may raise questions at any time about a plaintiff‘s standing

and the court‘s subject matter jurisdiction, Riverside Hosp. v. District of Columbia

Dep’t of Health, 944 A.2d 1098, 1103 (D.C. 2008), but where, as here, the

2

The majority opinion suggests that, in United States v. Am. Bell Telephone

Co. 128 U.S. 315 (1888), the Supreme Court ―clarified‖ that different standing

rules apply to the government. Ante note 22. But to support this proposition the

majority incompletely quotes that case quoting San Jacinto. Read in full, the Court

(in both cases) was explaining that the government must prove standing to sue just

like any private citizen:

[S]ince the right of the government of the United States

to institute such a suit depends upon the same general

principles which would authorize a private citizen to

apply to a court of justice for relief against an instrument

obtained from him by fraud or deceit, or any of those

other practices which are admitted to justify a court in

granting relief, the government must show that, like the

private individual, it has such an interest in the relief

sought as entitles it to move in the matter. . . . [I]f there

does not appear any obligation on the part of the United

States to the public, or to any individual, or any interest

of its own, it can no more sustain such an action than any

private person could under similar circumstances.

128 U.S. at 367 (quoting San Jacinto, 125 U.S. at 286).

57

defendants successfully challenged the plaintiff‘s standing to sue in the trial court,

it is not our place to supply the plaintiff with a new legal theory of standing on

appeal. Instead, when we agree with the trial court that the legal theory of standing

the plaintiff raised is not viable, we must affirm the trial court‘s ruling dismissing

the plaintiff‘s suit for lack of standing.3

The only theory of standing that the District ever advanced in this case is a

theory that has been rightly rejected—first by the trial court and now by the

majority opinion, see ante Part III.A.1. The District argued in the trial court and in

this court that a significant segment of its population was harmed by defendants‘

marketing agreements with gasoline retailers, and the District claimed a quasi-

sovereign interest to sue on their behalf under Snapp. As the majority explains, see

ante pp. 15–17, quasi-sovereign interests are so called because they are the

interests a state has in the health and well-being of a substantial segment of its

population under the law of a different sovereign, that of the federal government.

Snapp, 458 U.S. at 602, 607. It is the cognizable harm to this substantial segment

of the population under federal law that allows a state, as parens patriae, to evade

3

Only to the extent that the dismissal is without prejudice. See UMC

Development, 120 A.3d at 48 (explaining that a plaintiff‘s failure to allege standing

to sue must result in dismissal without prejudice because the dismissal is not on the

merits of the action). Thus an affirmance would not foreclose the plaintiff from

returning to the trial court and attempting to prevail on a new legal theory.

58

prudential standing limitations on raising the rights of third parties in federal court.

Id.4 The state still must satisfy all three Article III requirements; in particular, it

must show a concrete injury to its interests under federal law: ―more must be

alleged than injury to an identifiable group of individual residents,‖ Snapp, 458

U.S. at 607, and the state must be more than a ―nominal party,‖ id. at 602

(explaining that ―[i]nterests of private parties are obviously not in themselves

sovereign interests, and they do not become such simply by virtue of the State‘s

aiding in their achievement‖); see also id. at 608 (―caution[ing] that the State must

be more than a nominal party‖).5

Here, the District sought to claim, under Snapp, that it had standing to sue

based on an unquantified injury to an undefined segment of the population due to

appellees‘ alleged violation of a provision of the District‘s law, Subchapter III of

4

See also Oregon v. Legal Servs. Corp., 552 F.3d 965, 971 (9th Cir. 2009)

(characterizing a quasi-sovereign interest as more than simply aggregated private

interests and noting that the state would be precluded, under prudential standing

doctrine, from asserting the legal rights of third parties).

5

In Snapp, the Court determined that Puerto Rico‘s quasi-sovereign

interests were implicated such that it had standing to sue in federal court where it

alleged and substantiated, see id. at 597–98, ―that the petitioners discriminated

against Puerto Ricans in favor of foreign laborers‖ in violation of federal law, and

that ―Puerto Ricans were denied the benefits of access to domestic work

opportunities that the Wagner-Peyser Act and the Immigration and Nationality Act

of 1952 were designed to secure for United States workers.‖ Id. at 608.

59

the RSSA, that governs private contractual agreements between distributors and

retailers of gasoline. Arguably, the District never satisfied Article III requirements

to show that the distributors‘ alleged violations of Subchapter III injured the

District‘s interests in the well-being of its populace as a whole, or even a

substantial segment thereof.6 In any event, the majority opinion agrees that Snapp

has no application to the District‘s asserted right to act as parens patriae to pursue

a claim under its own law in its own courts.

The majority opinion reasons, however, that ―[t]he District was not required

to assert injury to a quasi-sovereign interest to establish standing to sue.‖ Ante p.

14. I agree that the District was free to make any standing argument it desired, but

the record is clear that it opted to pursue only one (misguided) standing argument,

6

The majority opinion, having explained that the District cannot assert

injury to a quasi-sovereign interest under Snapp, nonetheless applies the test for

quasi-sovereign injury and concludes that the District had sufficiently alleged

injury, as required under Snapp, to a sufficiently substantial segment of its

population. See ante note 12. Even under this inapposite legal theory, the District

did not sufficiently plead injury. The District asserted in its complaint only that

―many thousands of consumers in D.C.‖ were being denied unspecified ―benefits

of competition‖ as a result of the distribution agreements it wished to challenge.

The District never explained in more concrete terms what injury consumers

suffered as a result of that denial. Moreover, the District conceded at oral

argument before this court that the ―many thousands‖ number was a guesstimate,

or as they put it, a ―quantification . . . of the approximate number of people who

would be affected‖ based on the District‘s assertion in the complaint that appellee

CPG owns 27 of the 31 Exxon branded gasoline stations in the District, which it in

turn asserted was ―about 25% of all the gasoline stations in the District.‖

60

namely that it had an injury to its quasi-sovereign interests under Snapp. In its

complaint, the District asserted that it had authority to ―bring[] this action as

parens patriae on behalf of the residents, general welfare, and economy of D.C.‖

In its Opposition to the Defendants‘ Motions to Dismiss, the District elaborated

and made its sole standing argument clear: citing to or quoting from Snapp on

almost every page of its eight-page standing analysis, the District argued that, as

required by Snapp, it had alleged injury to ―a sufficiently substantial portion of the

population,‖ and, as authorized by Snapp, it was ―bring[ing] this action to protect

its quasi-sovereign interest in the well-being of its local economy,‖ which it linked

to the ―economic health of ‗the consuming public.‘‖ The District reiterated these

arguments at the hearing on the defendants‘ motions to dismiss, citing Snapp and

asserting that the District was ―suing as an injured quasi-sovereign to [redress]

injuries to the D.C.‘s economy.‖ After the hearing on the motion, the trial court

gave counsel another opportunity to submit ―a short, no more than five pages,

clarification of arguments or a correction of misstatements by yourself or by the

other side.‖ In its responsive filing, the District reiterated that the foundation for

its standing argument was ―the Supreme Court‘s holding in the seminal case of

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982).‖

61

Thus, at the District‘s direction,7 the trial court analyzed the District‘s

standing under Snapp.8 Notably, the District has never argued that the trial court

had too narrowly construed its standing argument. Instead, on appeal, the District

has renewed its argument that it has a quasi-sovereign interest under Snapp. In its

Summary of Argument, it explains that, ―[i]n order to sue as parens patriae, the

District must allege injury to a quasi-sovereign interest that affects a substantial

segment of the District‘s residents.‖ In the body of its brief, it then exclusively

argues that under Snapp and its progeny it ―has adequately—at minimum

7

The majority opinion appears to fault defendants/appellees for injecting

Snapp into this case. Ante p. 15. Arguably, the defendants only challenged the

District‘s standing under Snapp because the District, in its complaint, appeared to

be invoking the parens patriae language of Snapp. In any event, if the District

disagreed with the framing of defendants‘ arguments in their Motions to Dismiss,

and never believed itself to have quasi-sovereign standing under Snapp, the

District had the obligation—as plaintiff carrying the burden of proof on this

jurisdictional issue—to say so in its opposition and to articulate its theory of

standing to sue in this case. The District did not do this. Instead, it embraced

Snapp, made it the foundation of its standing analysis, and explicitly argued in the

trial court that its ―parens patriae standing [wa]s clear based on Snapp‖ and its

progeny.

8

The majority opinion also appears to fault the trial court for misconstruing

the District‘s argument, noting that ―the statement in the District‘s complaint that it

was bringing suit in its parens patriae capacity need not be read as an invocation

of the quasi-sovereign interest/parens patriae doctrine discussed in Snapp.‖ Ante

note 17; see also infra note 13 (explaining the origins and difference between the

two uses of ―parens patriae‖). But as detailed above, that is precisely what the

District asked the trial court to do. See ante p. 21 (conceding that the District

―focus[ed] its briefing . . . in the trial court, on whether its complaint sufficiently

pled a quasi-sovereign interest‖ under Snapp).

62

plausibly—alleged injury to a quasi-sovereign interest here, and should be allowed

to proceed with its complaint.‖9

9

The majority opinion nevertheless asserts that the District‘s standing

argument before this court was not limited to asserting its quasi-sovereign interest

under Snapp, alternately stating that ―the District has not entirely overlooked‖ the

distinct principles of standing that the majority opinion now determines apply to

this case regarding sovereign injury, ante p. 21, and that the District has

―undeniably advanced‖ a sovereign interest theory of injury in this case, ante p. 26.

But, to support these differing propositions, the majority opinion quotes from

portions of the District‘s brief discussing its theory of quasi-sovereign injury under

Snapp. Ante pp. 21, 26. And the majority opinion ignores the fact that elsewhere

in its brief, the District (1) acknowledged ―other interests a state can sue to

protect,‖ among them, ―sovereign interests,‖ and then (2) explained it had standing

based on a quasi-sovereign interest, which ―stand[s] apart‖ from those ―other

interests.‖ The District never argued that any of the ―other interests‖ it had

expressly acknowledged gave it standing to sue.

The majority opinion also relies on an exchange at oral argument with

counsel for defendants/appellees as evidence that the District did not limit its

standing argument before this court to asserting an injury to its quasi-sovereign

interests under Snapp: ―when asked whether the District had in effect asserted a

sovereign interest, counsel for the Distributors did not disagree with that

characterization.‖ Ante note 14. I disagree with this characterization of what was

said at oral argument. When counsel for the distributors was asked ―whether this is

a sovereign interest the District is attempting to enforce,‖ counsel unequivocally

answered ―no . . . . there is no injury to the District of Columbia.‖ Counsel was

then asked, ―had [the District] described [its interest] as . . . a sovereign interest,

would it have been on good footing?‖ prompting counsel to respond, ―I don‘t think

anything would be different,‖ both because the District lacked a cause of action,

and because ―you can‘t just assert a sovereign interest . . . [or] mouth the words

parens patriae.‖ Moreover, if we are looking for implicit concessions at oral

argument, we should look no further than the District‘s response to the very first

question from the bench, inquiring why the District ―ha[d] not asserted a sovereign

interest as opposed to a quasi-sovereign interest‖ as a basis for its standing to sue.

The District did not protest that it had. Instead after stating it had ―an interest akin

to a sovereign interest‖ as the majority opinion quotes, it maintained it had a

(continued…)

63

Although the majority opinion rejects the District‘s only standing argument,

based on Snapp, it does not hold as it should that the trial court was correct to

dismiss the District‘s complaint for lack of standing. Instead, the majority opinion

supplies a new theory of ―sovereign‖ interests to satisfy the standing requirement

for the District. I disagree substantively with this new theory. See infra note 11.

But foundationally, I think it is procedurally improper for this court to articulate

for the District government a legal theory of standing that it has never pursued.

Absent special circumstances (which no one has suggested exist in this case), we

would not permit a plaintiff to raise a new legal theory of standing for the first time

on appeal. See, e.g., Huron v. Cobert, 809 F.3d 1274, 1280 (D.C. Cir. 2016)

(explaining that the rule that ―legal theories not asserted at the District Court level

ordinarily will not be heard on appeal . . . . applies to standing, as much as to

merits[] arguments, because it is not the province of an appellate court to

‗hypothesize or speculate about the existence of an injury [Plaintiff] did not assert‘

(…continued)

―quasi-sovereign interest,‖ which it explained ―is the terminology that‘s used in the

parens context in order to define a state‘s interest which might be different than a

state‘s sovereign interest.‖ Although much later, on rebuttal, the District made the

single statement quoted by the majority that it had ―sovereign authority,‖ in the

same breath, it reiterated that its standing argument was grounded in Snapp. This

single statement at oral argument does not give this court license to flesh out and

endorse on appeal a theory of standing that the District never advanced in the trial

court or in briefing to this court.

64

to the District Court.‖); see also id. at 1280 n.4 (citing cases). I fail to see why this

court on appeal may raise a new theory of standing for a plaintiff sua sponte,

thereby relieving the plaintiff of its burden to prove its standing to sue, and then

grant the plaintiff relief on that basis.

B. The Majority Opinion’s Unfounded Theory that the District Has

Suffered an Injury to its Sovereign Interest

Even if this court may identify a new, ―sovereign interest‖ theory of standing

for the District, that theory would still have to satisfy the three ―irreducible‖

requirements of Article III standing. Grayson, 15 A.3d at 234 n.26. But this

endeavor fails at the first step; the District has no cognizable interest in the

enforcement of Subchapter III of the RSSA—a provision that deals with private

contractual agreements between distributors and retailers of gasoline—such that it

can claim the necessary ―concrete and particularized‖ injury, id. at 246.10

10

The majority opinion does not address the next steps in the Article III

standing inquiry—causation (which the District disclaimed a need to prove and

which the trial court appears to have found lacking) and redressability. Instead, the

majority opinion, having discerned only that the District has a sovereign interest

that could be injured, discontinues its standing analysis.

65

There are three types of interests that a government may assert have been

injured to supply a foundation for Article III standing: sovereign, quasi-sovereign,

and proprietary. Snapp, 458 U.S. at 601–02. The latter two patently have no

application here, because the District is seeking neither to vindicate its interest in

the well-being of its citizens under federal law in federal court nor to protect its

own property interests.11 This leaves the District‘s sovereign interests.

The majority opinion discerns that the District has a sovereign interest in

private, contractual agreements between distributors and retailers of gasoline,

because these agreements are the subject of a statute, and a government always has

a sovereign interest in enforcing its own statutes. I disagree with the majority

opinion‘s broad declaration that ―a government is injured when[ever] its laws are

violated,‖ ante p. 24. Instead, to determine whether there is a sovereign interest

and thus sovereign injury, we must look to the statute under which the District

claims standing to sue—here, Subchapter III of the RSSA. Based on my

examination of the text of Subchapter III, the RSSA as a whole, and the legislative

11

Beyond discrete property holdings, a state has an interest in the

―maintenance and recognition of [its] borders,‖ Snapp, 458 U.S. at 601, which are

sometimes described as ―quasisovereign‖ interests, Hawaii v. Standard Oil Co.,

405 U.S. 251, 258–59 (1972), or ―sovereign‖ interests, Georgia v. Pa. R.R. Co.,

324 U.S. 439, 447–49 (1945). Whatever the proper nomenclature, this interest is

obviously not implicated in this case.

66

history of that Act, see infra Part I.B.2, I see no indication that Subchapter III is

meant to protect anything other than private, proprietary interests.

1. Assessing Sovereign Interests

Preliminarily, it is important to acknowledge the origins of sovereign power

and concede the fact that neither we, as a court, nor the Office of the Attorney

General, as an agent of the executive, have the authority to create or define the

sovereign interests of a state. This power was derived from the sovereignty of the

king and was passed from the crown to the state legislatures upon our nation‘s

independence,12 Late Corp. of the Church of Jesus Christ of Latter-Day Saints v.

United States (Mormon Church), 136 U.S. 1, 56–58 (1890):

12

The sovereign authority of the Council has a distinct origin—the Home

Rule Act, Pub. L. No. 93-198, 87 Stat. 774 (1973)—and its legislative authority not

only has significant substantive limits, see D.C. Code § 1-204.04 (2014 Repl.);

D.C. Code §§ 1-206.01, 1-206.02 (2001), but also may be overridden by Congress,

which retains plenary legislative authority over the District, see D.C. Code § 1-

201.02 (a) (2001); § 1-206.01. The majority opinion acknowledges that ―the

District is merely akin to a sovereign state,‖ ante p. 19, but assumes that because

the District is a ―sovereign for many purposes,‖ it is sovereign for standing

purposes, ante p. 20. If that assumption is correct, it seems we should not diminish

the Council‘s sovereign power by allowing the executive to exercise power the

Council has not given it, or by giving the executive that power ourselves.

67

When this country achieved its independence, the

prerogatives of the crown devolved upon the people of

the states. And this power still remains with them,

except so far as they have delegated a portion of it to the

federal government. The sovereign will is made known

to us by legislative enactment.[13]

Id. at 57.

A state legislature wields its sovereign power ―to create and enforce a legal

code, both civil and criminal.‖ Snapp, 458 U.S. at 601. But in exercising this

13

It is true that the sovereign power to act as parens patriae to protect the

most vulnerable members of our society—in the parlance of a different era,

―charities, infants, idiots, [and] lunatics,‖ Mormon Church, 136 U.S. at 58—also

transferred from the King to the states, and that state executives, even without the

exercise of legislative authority, have the common law sovereign authority to sue

on these persons‘ behalf. Id. at 57; see also Snapp, 458 U.S. at 600 (explaining

that this common law sovereign authority to sue to protect persons with legal

disabilities ―has relatively little to do‖ with ―parens patriae standing,‖ i.e., states‘

ability to raise a quasi-sovereign interest a state has in the well-being of a

substantial number of its citizens under federal law). But this common law

sovereign authority is frozen in time and is no longer subject to expansion by the

courts. See Snapp, 458 U.S. at 600 (noting that ―American courts recognized this

common-law concept, but now in the form of a legislative prerogative‖).

Thus, to the extent the majority opinion makes a separate argument that the

District in this case also had standing to ―bring suit . . . as parens patriae to pursue

matters arising under local law,‖ ante note 17, I cannot agree. The majority cites

cases that concern the groups protected under the common law sovereign parens

patriae authority—i.e., charitable trusts and children. Only the legislature may

expand the District‘s parens patriae authority beyond its now static boundaries.

The majority opinion cites no case that permits the District to sue ―as parens

patriae‖ in a manner other than that authorized at common law or explicitly by

statute.

68

power, the legislature is not articulating sovereign interests in every law it passes.14

Instead, a state legislature may define and protect an array of interests. Looking at

the D.C. Code, there are (1) civil statutes that protect the District‘s sovereign

interests, both (a) statutes codifying common law parens patriae powers, see supra

note 13,15 and (b) statutes expanding those parens patriae powers;16 (2) civil

statutes that protect the District‘s proprietary interests;17 and (3) civil statutes that

14

Whether the agents of the state government may defend a statutory

provision the legislature has enacted is a separate question from whether the

legislature intended for agents of the government to affirmatively enforce it against

other parties. ―No one doubts that a State has a cognizable interest ‗in the

continued enforceability‘ of its laws that is harmed by a judicial decision declaring

a state law unconstitutional. To vindicate that interest or any other, a State must be

able to designate agents to represent it in federal court.‖ Hollingsworth v. Perry,

133 S. Ct. 2652, 2664 (2013) (citations omitted)).

15

See, e.g., D.C. Code § 16-2305 (2013 Repl.) (giving the District the

power to file neglect petitions for juveniles); D.C. Code § 21-541 (2013 Repl.)

(authorizing the District to file civil commitment petitions).

16

See, e.g., D.C. Code § 28-4507 (b)–(d) (empowering the District to ―bring

a civil action in the name of the District . . . on behalf of any individual residing in

the District . . . for injury sustained by such individual to such individual‘s property

by reason of any violation of‖ the antitrust laws).

17

See, e.g., D.C. Code § 28-4507 (a) (authorizing the District to ―bring a

civil action . . . for damages‖ against a private party when the ―government is

injured in its business or property by a violation of‖ antitrust laws).

69

protect purely private interests.18 Criminal laws are different; they express only

sovereign interests.19

Thus, we cannot automatically conclude that the mere existence of a statute,

no matter the content, signals the existence of a sovereign interest. We must look

to the particulars of a civil statute to determine if a sovereign interest is being

protected, such that the government can claim standing to sue. See Spokeo, 136 S.

Ct. at 1549 (―Congress has the power to define injuries and articulate chains of

causation that will give rise to a case or controversy where none existed before.‖

(cleaned up)); Vermont Agency of Nat. Res. v. United States ex rel. Stevens, 529

U.S. 765, 773 (2000) (noting that Congress can ―define new legal rights, which in

turn will confer standing to vindicate an injury caused to the claimant‖); Sierra

Club v. Morton, 405 U.S. 727, 731–32 (1972) (―[T]he inquiry as to standing must

begin with a determination of whether the statute in question authorizes review at

the behest of the plaintiff.‖); Warth v. Seldin, 422 U.S. 490, 500 (1975) (―The

18

See, e.g., D.C. Code §§ 42-501 to -523 (2001) (regulating estates in land).

19

It is a foundational premise of our criminal justice system that the

violation of a criminal law causes actionable injury to the state itself—not to any

complainant. See In re Taylor, 73 A.3d 85, 96 (D.C. 2013) (clarifying that a

private party may not prosecute another for a crime because ―our entire criminal

justice system is premised on the notion that a criminal prosecution pits the

government against the governed‖ (cleaned up)).

70

actual or threatened injury required by Art. III may exist solely by virtue of

‗statutes creating legal rights, the invasion of which creates standing.‘‖). And we

apply established rules of statutory interpretation. See United States v. James, 478

U.S. 597, 604 (1986) (―The starting point in statutory interpretation is the language

of the statute itself. We assume that the legislative purpose is expressed by the

ordinary meaning of the words used.‖ (cleaned up)); see also District of Columbia

v. Beretta, U.S.A., Corp., 872 A.2d 633, 651 (D.C. 2005) (―The text of an

enactment is the primary source for determining its drafters‘ intent.‖).20

This is where the majority opinion, having sua sponte raised a ―sovereign

interest‖ theory of standing on behalf of the District, takes another wrong turn.

The majority opinion does not apply tools of statutory interpretation to D.C. Code

§ 36-303.01 (a)—part of Subchapter III of the RSSA—to determine what interests

the Council created therein. Indeed, in conducting its standing analysis, the

majority opinion ignores the text of D.C. Code § 36-303.01 (a), the structure of the

RSSA as a whole, and its legislative history.21 Instead, it rests its standing analysis

20

There is one exception to this rule: we do not conduct a textual analysis

of criminal statutes to assess whether they protect a sovereign interest and thus

give the government standing to sue, because, as explained above, unlike the civil

legal code, criminal statutes define only sovereign interests. See supra note 19.

21

The majority opinion considers the text of the RSSA in its Rule 12 (b)(6)

analysis, see ante Part III.B, for a different purpose: to determine if the statute

(continued…)

71

on the broad, unsupported legal conclusion that the legislature always defines a

sovereign interest when it passes a law, i.e., the act of legislating on any subject, in

any manner, itself evinces a sovereign interest in the enforcement of that law.

The majority opinion presents its theory as a well-established proposition:

―Case law establishes that a government is injured when its laws are violated.‖

Ante p. 24. But this blanket assertion, without limitation or qualification, is not

supported by a single appellate decision cited by the majority opinion.22 Instead,

(…continued)

expressly deprives the Attorney General of what the majority understands to be a

broad right to sue in the public interest, unless expressly limited by statute. But see

infra Part II.

22

The majority opinion states in a footnote that it is not ―say[ing] that the

District may sue as parens patriae to enforce every District of Columbia law,‖ ante

note 15, and cites Shell Oil Co. v. Noel, 608 F.2d 208, 212 (1st Cir. 1979), for the

proposition that there is a distinction between statutes ―declaring conduct

unlawful‖ and statutes that ―determine[] the right of one person to recover from

another.‖ Thus the majority opinion appears to hold open the possibility that the

District might not be permitted to enforce a statute if the statute protects purely

private interests. But the majority opinion does not actually disclaim the broad

statement that the District has a sovereign interest in the enforcement of every D.C.

Code provision. Moreover, other than asserting, without supporting citation, that

Subchapter III of the RSSA is a ―statutory prohibition[] imposed to foster

competition for the benefit of consumers,‖ ante note 15, the majority opinion never

explains why this provision, whose plain language only addresses private rights,

see infra Part I.B.2, does not fall into the latter category of statutes.

In this respect, the majority opinion‘s citation to Shell Oil is curious. In that

case, a private company sought to sue the executive officers of a state government

(continued…)

72

the opinion takes out-of-context statements from cases in which the statutes at

issue explicitly define sovereign interests.

The majority opinion relies on three criminal cases (two of which are

unpublished), see ante note 18, but, as explained above, criminal statutes define

only sovereign interests. See supra note 19. Thus these cases cannot be relied

upon to support a broader theory of ―sovereign‖ injury that extends to any civil

statutory violation. Furthermore, an examination of what these cases actually say

reveals that they do not purport to do so. In United States v. Yarbrough, 452 F.

App‘x 186 (3d Cir. 2011), the Third Circuit stated only that ―[t]he Government

doubtlessly suffers an ‗injury in fact‘ when a defendant violates its criminal laws.‖

(…continued)

to enjoin enforcement of a state law regulating the sale of petroleum products. The

First Circuit affirmed the district court‘s decision to dismiss the case on standing

grounds, because the state had never sought to enforce the statute against the

company, and it was not clear that the state could do so. The First Circuit

concluded it was an unsettled question of state law whether the statute in question

created a ―mere tort or wrong‖ for the purchaser against the petroleum company, or

whether it ―indicate[d] . . . a wrong against the general public, which injures the

general welfare, and which if done in accordance with the agreement of two or

more persons would support‖ criminal enforcement action by the State. 608 F.2d

at 212. Though the majority opinion in this case has framed the issue as whether

Subchapter III of the RSSA creates a sovereign interest, the majority opinion

declines to conduct the particularized analysis of the statute that the First Circuit in

Shell Oil indicated would be necessary to determine the nature of the interest

protected; instead the majority opinion simply declares that ―a government is

injured when its laws are violated.‖ Ante p. 24.

73

Id. at 189 (emphasis added). Thus its rejection in the next sentence to the

defendant‘s standing challenge, ―because the Government has standing to enforce

its own laws,‖ id., is only reasonably interpreted as a recognition of the

government‘s ―standing to enforce its own [criminal] laws.‖ Similarly, in United

States v. Daniels, 48 Fed. App‘x 409 (3d Cir. 2002), the Third Circuit stated only

that, ―[a]s sovereign, the United States has standing to prosecute violations of valid

criminal statutes.‖ Id. at 418 (emphasis added). And in this court‘s decision in

Crockett v. District of Columbia, 95 A.3d 601 (D.C. 2014), we confirmed only that

―the Attorney General has an interest, sufficient to confer standing, in the

enforcement of the criminal laws of the District of Columbia.‖ Id. at 605

(emphasis added).

The majority opinion also cites an array of civil cases that do not support its

theory that the District has a sovereign interest in the enforcement of all District

statutes. Many of these cases interpret distinctive qui tam statutes, which allow

private parties to bring suit in the name of the government to vindicate the

government‘s sovereign and proprietary interests. First among these is the

Supreme Court‘s decision in Vermont Agency, which examines a private plaintiff‘s

74

rights to sue under the False Claims Act, a hybrid criminal/civil statute.23 The

majority opinion incompletely quotes Vermont Agency as stating that ―[i]t is

beyond doubt that the complaint asserts an injury to the United States[,]‖ i.e., an

―injury to its sovereignty arising from violation of its laws[.]‖ Ante p. 24 (quoting

529 U.S. at 771). But when the quoted sentence is read in full, it supports only the

much more limited (and uncontroversial) proposition that the federal government

has a sovereign interest in the enforcement of its criminal laws and a proprietary

interest in challenging false claims for payment of government funds:

It is beyond doubt that the complaint asserts an injury to

the United States—both the injury to its sovereignty

arising from violation of its laws (which suffices to

support a criminal lawsuit by the Government) and the

proprietary injury resulting from the alleged fraud.

23

The text of the False Claims Act clearly indicates that the federal

government has proprietary interests at stake, which Congress has authorized a

private party to invoke in a civil suit. See 31 U.S.C. § 3729 (a)(1) (defining

―[l]iability for certain acts‖ that constitute ―false claims‖ and makes all persons

who perform such acts ―liable to the United States Government for a civil

penalty‖); § 3730 (a) (―[T]he Attorney General diligently shall investigate a

violation under section 3729. If the Attorney General finds that a person has

violated or is violating section 3729, the Attorney General may bring a civil action

under this section against the person.‖); § 3730 (b) (authorizing a private party to

bring the same civil action ―in the name of the Government‖); see also Vermont

Agency, 529 U.S. at 771 (―[T]he complaint asserts a[] . . . proprietary injury [to the

United States] resulting from the alleged fraud.‖).

75

529 U.S. at 771 (emphases added). The other qui tam cases cited by the majority,

ante note 18, are derivative of Vermont Agency, and their statements about the

government‘s standing to enforce its own laws reflect only the determination that

the statutes at issue in those cases defined a sovereign injury.24

In addition, the majority opinion cites a few non-qui tam civil cases. Ante

notes 18 & 21. Some have no application to the question in this case. 25 The

24

See Stauffer v. Brooks Bros., 619 F.3d 1321, 1326 (Fed. Cir. 2010)

(―Congress has, by enacting [the false marketing provision in the Patent Act,

another statute containing qui tam provisions], defined an injury in fact to the

United States. In other words, a violation of that statute inherently constitutes an

injury to the United States. In passing the statute prohibiting deceptive patent

mismarking, Congress determined that such conduct is harmful and should be

prohibited. The parties have not cited any case in which the government has been

denied standing to enforce its own law.‖ (emphasis added)); Newt LLC v. Nestle

USA Inc., No. 09-C-4792, 2011 U.S. Dist. LEXIS 32837, at *4–5 (N.D. Ill. Mar.

28, 2011) (―By enacting [the Patent Act], Congress defined an injury in fact to the

United States. The government always has standing to enforce its own laws and,

thus, a relator, as the government‘s assignee, also has standing to enforce [this

provision of the Patent Act].‖ (citing Stauffer, 619 F.3d at 1325)); Hy Cite Corp. v.

Regal Ware, Inc., No. 10-cv-168-wmc, 2011 U.S. Dist. LEXIS 55011 (W.D. Wis.

Mar. 15, 2011) (The false marketing provision of the Patent Act ―is a qui tam

provision . . . . Because ‗Congress has, by enacting [the false marketing

provision], defined an injury in fact to the United States,‘ Hy Cite also has standing

to assert that injury.‖ (citing Stauffer, 619 F.3d at 1325)).

25

The majority opinion quotes a passage from In re Debs, 158 U.S. 564,

584 (1895) a habeas case in which union officials who had been held in criminal

contempt and imprisoned for violating an injunction ordering them to discontinue a

railway strike challenged the government‘s standing to seek such an injunction. In

the passage quoted by the majority opinion, the Court observed only that the

(continued…)

76

remainder do not support the majority opinion‘s broad conception of a sovereign

interest in the enforcement of all statutes; they refute it. As the majority itself

acknowledges, ante p. 26, the courts in these cases analyze the text of the particular

statute sought to be enforced to discern the sovereign interest.26

(…continued)

government did not have to assert a proprietary interest in order to establish its

standing (although the Court determined that the government in fact had a

―property [interest] in the mails‖). Id. at 584. The Court then determined that the

federal government had standing to seek an injunction based on its

constitutionally-based sovereign interests (also reflected in implementing statutes)

in regulating interstate commerce. Id. at 586–92. In re Debs does not support the

majority opinion‘s broad holding that a government has standing to sue whenever

any of its laws are violated and is entirely distinguishable, in light of both the

nature and origin of the sovereign interest at stake and the ―special exigency‖ of

the railway strike at issue in that case. Id. at 592. The majority also cites Castillo

v. Cameron Cty., 238 F.3d 339, 351 (5th Cir. 2001), but that case addressed a

state‘s nonparty standing to appeal an injunction and, applying the three-part test

already established in that jurisdiction to resolve that issue, the Fifth Circuit held

that the state could appeal. Castillo provides no support for the majority opinion‘s

holding that a government has standing to initiate a law suit whenever any state

statute has been violated.

26

See Bhd. of Ry. & S.S. Clerks v. Fla. E. Coast Ry. Co., 384 U.S. 238, 242

n.4 (1966) (―[W]e have no doubt that the United States had standing to bring this

action,‖ because the statute ―ma[d]e[] it the duty of the United States attorney to

institute in the proper court and to prosecute all necessary proceedings for the

enforcement of [the section of the Act the company was] charged with violating.‖

(cleaned up)); EEOC v. Day & Zimmerman NPS, Inc., 15-cv-1416, 2017 U.S. Dist.

LEXIS 133918 at *20–21 (explaining that ―[t]he EEOC has standing to pursue this

action‖ because ―[t]hrough the ADA, Congress has charged the EEOC with the

function of ‗prevent[ing] any person from engaging in any unlawful employment

practice‘ that violates the ADA.‖ (quoting 42 U.S.C. 2000e-5 (a))); EEOC v.

Celadon Trucking Servs., No. 1:12-cv-00275-SEB-TAB, 2015 U.S. Dist. LEXIS

84639 (S.D. Ind. June 30, 2015) (―[T]he EEOC‘s standing to bring a suit

challenging a violation of the ADA . . . stems directly from the statute, and the

(continued…)

77

2. Interests Defined in Subchapter III of the RSSA

The District alleged in its complaint that the defendants had entered into

contracts for the distribution of gasoline that violated D.C. Code § 36-303.01 (a)(6)

& (11), a provision in Subchapter III (governing Marketing Agreements) of the

RSSA, which states:

All marketing agreements shall be in writing and shall be

subject to the nonwaiverable conditions set forth in this

section, . . . . [and n]o marketing agreement shall: . . .

(6) Prohibit a retail dealer from purchasing or

accepting delivery of, on consignment or

otherwise, any motor fuels, petroleum products,

automotive products, or other products from any

person who is not a party to the marketing

agreement or prohibit a retail dealer from selling

such motor fuels or products, provided that if the

marketing agreement permits the retail dealer to

use the distributor‘s trademark, the marketing

agreement may require such motor fuels,

petroleum products, and automotive products to be

of a reasonably similar quality to those of the

distributor, and provided further that the retail

dealer shall neither represent such motor fuels or

(…continued)

EEOC‘s own statutory enforcement authority. We thus agree with the EEOC that

the agency suffers an ‗injury‘ sufficient to give rise to Article III standing when a

violation of Section 102 of the ADA occurs.‖ (citations omitted)).

78

products as having been procured from the

distributor nor sell such motor fuels or products

under the distributor‘s trademark; [or] . . .

(11) Contain any term or condition which, directly

or indirectly, violates this subchapter.

Looking to the text of § 36-303.01, and examining it in the context of the RSSA as

a whole and its legislative history, I discern no sovereign interests; I see only

private, proprietary interests, which are insufficient to provide the District with

standing to sue in this case. Pennsylvania v. New Jersey, 426 U.S. 660, 665 (1976)

(―[A] State has standing to sue only when its sovereign or quasi-sovereign interests

are implicated and it is not merely litigating as a volunteer the personal claims of

its citizens.‖).

Section 36-303.01 by its terms imposes limitations on ―marketing

agreements,‖ which are defined in pertinent part as ―any written agreement, or

combination of agreements, including any contract, lease, franchise, or other

agreement, which is entered into between a distributor and a retail dealer and

pursuant to which‖ the parties contract for the sale of motor fuel. D.C. Code § 36-

301.01 (2013 Repl.) (emphasis added). Distributors and retail dealers are in turn

79

defined as private ―persons.‖27 Moreover, if a distributor violates the provisions of

§ 36-303.01, only retail dealers have a right of action to seek relief under

Subchapter III.28 See D.C. Code § 36-303.04 (2001) (listing the remedies retail

dealers may seek against distributors in specific scenarios ―in addition to any and

all other remedies available‖); D.C. Code § 36-303.06 (2001) (specifying the types

of civil actions retail dealers may bring against distributors in addition to the

remedies available under § 36-303.04 and other statutes or laws). Just as important

as what the statute says is what it does not: nowhere in Subchapter III is the

District mentioned, either as an interested party or an enforcer, nor is there any

27

See D.C. Code § 36-301.01 (2) (defining a ―[d]istributor‖ in pertinent part

as ―any person who is engaged in the business of selling, supplying, or distributing

on consignment or otherwise, motor fuels or petroleum products to or through

retail service stations.‖); D.C. Code § 36-301.01 (13) (defining a ―[r]etail dealer‖

in pertinent part as ―any person, other than an employee of a distributor, who owns,

leases, operates, or otherwise controls a retail service station for the purpose of

engaging in the retail sale of motor fuel‖); D.C. Code § 36-301.01 (10) (defining a

―person‖ in pertinent part as ―any natural person, firm, association, business trust,

trust, estate, partnership, corporation, 2 or more persons having a common or joint

interest, or other legal or commercial entity‖).

28

The fact that the legislature appears not to have given the government an

express or implied cause of action, see infra Part II, also indicates that its objective

was only to protect private interests. See Warth v. Seldin, 422 U.S. 490, 500

(1975) (―Although standing in no way depends on the merits of the plaintiff‘s

contention that [the defendant‘s conduct violates a statute], it often turns on the

nature and source of the claim asserted. The actual or threatened injury required

by Art. III may exist solely by virtue of statutes creating legal rights, the invasion

of which creates standing.‖ (cleaned up)).

80

indication that regulating the terms of these contracts is in the broader public

interest.

By contrast, Subchapters II and IV of the RSSA expressly call for the

executive branch of the District to promulgate a regulatory scheme governing the

operation and conversion of retail service stations, see D.C. Code § 36-302.04 (c)

(2001) (directing the Mayor to ―promulgate all other rules and regulations

necessary for the proper implementation and enforcement of subchapters II and

IV‖), and authorize the District to enforce those statutory provisions and attendant

regulations, see D.C. Code § 36-302.05 (a) (2013 Repl.) (authorizing the Mayor to

order individuals believed to be violating these provisions to cease and desist and if

they do not comply to seek injunctive relief); § 36-302.05 (b) (designating ―[a]ny

violation of any provision of subchapter II or IV of this chapter or the rules and

regulations promulgated pursuant thereto‖ as ―a misdemeanor‖). Unlike

Subchapter III, Subchapters II and IV clearly define sovereign interests enforceable

by the sovereign through administrative oversight, affirmative civil litigation, or

criminal prosecution.

The legislative history of the RSSA likewise reflects that Subchapter III was

expressly designed by the Council to regulate private conduct, whereas

81

Subchapters II and IV were designed for government enforcement. In the RSSA

Committee Report, the Council explained that, in response to its various concerns

regarding the distribution and sale of motor fuel in the District, it had drafted a

statute with ―three Titles, each involving a different form of regulation,‖ and each

with the purpose of protecting different interests. D.C. Council, Comm. on Transp.

& Envtl. Affairs, Report on Bill Nos. 1-333 & 1-39 at 20 (Nov. 16, 1976) (―RSSA

Committee Report‖) (emphasis added). The section of the Report addressing

Subchapter III of the RSSA begins by explaining that its ―primary purpose . . .is to

afford independent motor fuel dealers operating under marketing agreements

increased legal protection against arbitrary, unreasonable, and discriminatory

terminations, cancellations, and non-renewals of their marketing agreements by

distributors,‖ id. at 25, through ―preempt[ion]‖ of traditional contract law, id. at 26.

The Report then explains that existing laws ―afford inadequate protection to retail

dealers‖ and expresses concern that because of the ―significant disparity in

bargaining power‖ between retailers and distributors when executing marketing

agreements, ―distributors are able to dictate the terms of a marketing agreement‖—

a form of contract—―to their own best advantage while taking unfair advantage of

the prospective retail dealer.‖ Id. The Report expressed particular concern about

contract terms that permitted distributors to ―reserve a unilateral contract right to

terminate, cancel[], not renew, or modify a marketing agreement on short notice.‖

82

Id. ―As a result, retail dealers are generally denied the traditional prerogatives and

protections afforded to independent businessmen.‖ Id. Following this explanation

of its impetus, the Report enumerates the five ―purposes‖ Subchapter III will

―serve‖:

(1) to grant increased legal protection to retail dealers

. . . ; (2) to clarify the contractual relationship between

distributors and retail dealers . . . ; (3) to insure that

distributors will treat retail dealers in an equitable

manner; (4) to end . . . the arbitrary, unreasonable, and

discriminatory terminations, cancellations, and

nonrenewals of marketing agreements and other abuses

of retail dealers and unsavory practices by distributors;

and (5) to enhance the independence of retail dealers in

the operation of their retail services stations . . . and,

thereby, enhance fair and honest competition and the

ability of retail dealers to tailor their operations to the

needs, preferences, and convenience of their local

customers.

Id. at 28. The Report then explains how the RSSA will ―achieve these purposes,‖

including by prohibiting certain types of contractual provisions and ―granting the

retail dealer a legal cause of action for the distributor‘s violation‖ of Subchapter

III. Id. at 28–29.29

29

The majority opinion ignores much of this discussion of the rationale for

Subchapter III and instead quotes disparate snippets of the Report to support its

argument that Subchapter III was drafted with the aim of protecting the general

public. Ante p. 48–50. Read in context these select quotations do not support the

majority opinion‘s argument. And even if these quotations did show that the

Council thought that a byproduct of Subchapter III would be some benefit to

(continued…)

83

By contrast, the Report states that the ―primary purpose‖ of Subchapters II

and IV are, respectively and much more broadly, ―to preserve and, to some extent,

enhance competition in the retail marketing segment of the petroleum industry‖

through marketplace regulation, id. at 22; see also id. at 22–23 (discussing the four

goals that ―will be achieved‖ by Subchapter II and referencing increased

competition and lower fuel prices), and to protect all ―consumers‖ by

―temporarily‖ limiting closures of full service retail service stations ―pending a

study of the existing facilities‖ by the Mayor, id. at 33–34.

That the Council intended to protect different interests with different

enforcement mechanisms in the subchapters of the RSSA is also reflected in the

Report‘s discussion of the ―fiscal impact‖ of the legislation. The Council stated

that Subchapter III of the RSSA ―deals exclusively with private rights and,

therefore, should have negligible budgetary impacts on the District of Columbia.‖

RSSA Committee Report at 64. But the Council acknowledged that Subchapters II

and IV would ―impose . . . additional duties and responsibilities on the District of

(…continued)

District consumers generally, that does not establish the government‘s sovereign

interest and a standing to sue under Subchapter III of the RSSA. In our modern

era, the government does not have freeform parens patriae standing to sue to

enforce any statute it chooses. See supra note 13.

84

Columbia Government,‖ including ―enforcement of violations‖ of the provisions in

these subchapters. Id. at 63.

In sum, the plain text, the structure, and the legislative history of the RSSA

demonstrate that the Council clearly and explicitly assigned separate roles for

public and private enforcement of the RSSA. As the RSSA Committee Report

explains, Subchapter III ―deals exclusively with private rights‖ and interests, not

sovereign ones. Id. at 64. Therefore, even if it were permissible for this court to

seek out a novel theory of standing not urged by the District, I could not agree the

District can claim injury to a sovereign interest and thus standing to sue under

Subchapter III of the RSSA.

II. Cause of Action: The 12 (b)(6) Ruling

As noted above, standing is jurisdictional. If the District lacks standing to

sue under the Subchapter III of the RSSA, there is no need to review the trial

court‘s additional ruling dismissing the District‘s complaint for failure to state a

claim, i.e., for failure to identify a cause of action in the statute, Super. Ct. Civ. R.

12 (b)(6). But the majority opinion, having supplied the District with a theory of

standing, reaches the trial court‘s 12 (b)(6) ruling and concludes that the trial court

erred when it determined that the District possesses neither an express nor an

85

implied cause of action under Subchapter III of the RSSA. The majority opinion

eschews any analysis of an express or implied cause of action under Subchapter III

of the RSSA, instead asserting that the District‘s designated agent, its Attorney

General, derives its right to sue under the 2010 Attorney General Act, specifically,

D.C. Code § 1-301.81 (a)(1). According to the majority opinion, § 1-301.81 (a)(1)

gave the District‘s Attorney General a cause of action to sue in the public interest

that is unbounded unless the particular statute under which the Attorney General

seeks to sue expressly prohibits the Attorney General from suing thereunder. Just

as with its standing analysis, the majority opinion confers on the District broad

rights that are unfounded in the law, that exempt the government from established

rules of litigation, and that raise separation of powers concerns. Once again, I

cannot agree with the majority opinion‘s analysis.

A plaintiff may have a cognizable interest in a matter such that she has

standing to sue, but nonetheless be without a cause of action to pursue her claims

in court.30 To determine if a litigant suing under a statute has an express or implied

cause of action, courts look to the statute under which the suit has been filed:

30

See Cannon v. Univ. of Chi., 441 U.S. 677, 688 (1979) (―[T]he fact that a

federal statute has been violated and some person harmed does not automatically

give rise to a private cause of action in favor of that person.‖); Jones v. District of

Columbia, 996 A.2d 834, 841 (D.C. 2010) (same); see also Lexmark Int’l, Inc. v.

(continued…)

86

Like substantive federal law itself, private rights of action

to enforce federal law must be created by Congress. The

judicial task is to interpret the statute Congress has

passed to determine whether it displays an intent to create

not just a private right but also a private remedy.

Statutory intent on this latter point is determinative.

Without it, a cause of action does not exist and courts

may not create one, no matter how desirable that might

be as a policy matter, or how compatible with the statute.

Alexander v. Sandoval, 532 U.S. 275, 286–87 (2001) (cleaned up); accord Touche

Ross & Co. v. Redington, 442 U.S. 560, 568 (1979) (―The question of the existence

of a statutory cause of action is, of course, one of statutory construction.‖); see also

Gonzaga Univ. v. Doe, 536 U.S. 273, 283–84, 286 (2002). This court conducts the

same statutory analysis to determine if the District government has a cause of

action. See Beretta, 872 A.2d at 651–52 (holding that the Assault Weapon

Manufacturing Strict Liability Act of 1990, D.C. Code § 7-2551.01 et seq. (2001),

―confers a right of action on individuals who are injured, but not the District of

Columbia,‖ looking to the text as ―the primary source for determining its drafters‘

intent‖).

(…continued)

Static Control Components, Inc., 134 S. Ct. 1377, 1387–88 n.4 (2014) (explaining

that ―the absence of a valid . . . cause of action does not implicate subject-matter

jurisdiction, i.e., the court‘s statutory or constitutional power to adjudicate the

case‖ (cleaned up)).

87

The District has conceded in its brief to this court, as it must, that

Subchapter III of the RSSA, unlike other subchapters, ―does not provide the

District . . . with express authority to enforce § 36-303.01 (a).‖ And, by failing to

make the argument, it implicitly concedes—again, correctly in my view—that the

RSSA does not provide it with an implied cause of action either. There is no

indication in the text, structure, or legislative history of the RSSA that the Council

intended to give the District government a right to sue to enforce the private,

proprietary interests protected by Subchapter III. See supra Part I.B.2. Instead,

whereas the RSSA gives the Mayor enforcement powers under Subchapters II and

IV, it does not give the Mayor (or any executive branch official)31 those powers

under Subchapter III of the RSSA. See supra Part I.B.2. Finally, the Council‘s

recent, repeated failures to pass bills attempting to give the Attorney General the

enforcement power it lacks under Subchapter III indicates that the Council does

not want to give the Attorney General this authority to sue.32 The Council has, at

31

At the time RSSA became law in 197

This text is long and has been trimmed here. Open the source document for the complete record.