UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

MISGANAW ALEMU, et al., :

:

Plaintiffs, : Civil Action No.: 17-cv-1904 (RC)

:

v. : Re Document Nos.: 9, 15, 18 

:

DEPARTMENT OF FOR-HIRE :

VEHICLES, et al., :

:

Defendants. :

MEMORANDUM OPINION

GRANTING DEFENDANTS’ MOTIONS TO DISMISS

I. INTRODUCTION

This case involves a group of individuals who believe that they have been defrauded by a 

government institution established, in part, to protect their interests; an institution that they claim 

has been corrupted by private interests opposed to their own. Plaintiffs are a group of taxicab 

drivers who have brought several common law, District of Columbia law, and federal law claims

against a District of Columbia regulatory agency, the Department of For-Hire Vehicles

(“DFHV”), and Jeffrey Schaeffer, an owner of various taxi-related companies (together, 

“Defendants”). Plaintiffs allege that DFHV misrepresented important taxicab licensing 

information and then worked alongside Mr. Schaeffer to draft and implement new licensing 

regulations which effectively preclude them from obtaining licenses to operate their own

taxicabs. Now before the Court are DFHV’s motions to dismiss for insufficient service of 

process and lack of subject-matter jurisdiction, and both Defendants’ motions to dismiss for 

failure to state a claim for relief. For the reasons stated below, the Court grants both motions to 

dismiss for failure to state a claim. 
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II. FACTUAL BACKGROUND

A. The DFHV

Plaintiffs’ claims arise from their inability to obtain “H-Tag” permits and, consequently, 

their inability to own and operate taxicabs. An “H-Tag” is a license necessary to operate a public 

for-hire vehicle in the District of Columbia. See D.C. Code § 47-2829 (2018); Mem. P. & A. 

Supp. Def. Dep’t For-Hire Vehicles Mot. Dismiss (“DFHV Mem.”) Ex. 1 (“H-Tag Report”) at 1, 

ECF No. 18-3.

1

 DFHV determines the criteria for H-Tag eligibility. Id.

2

 

DFHV is “a subordinate agency within the executive branch of the District government 

with exclusive authority for intrastate regulation of the public-vehicle-for-hire industry.” D.C. 

Code § 50-301.04 (2018). It is led by a Director who is appointed by the Mayor with the advice 

and consent of the District of Columbia Council. D.C. Code § 50-301.05. “The DFHV is

charged with the continuance, further development, and improvement of the vehicle-for-hire

industry within the District, and for the overall regulation of limousines, sedans, taxicabs, taxicab

 1 The H-Tag Report is an official government report commissioned by the District of 

Columbia Taxicab Commission—the DFHV’s predecessor—and it is available on DFHV’s 

website. See Department of For-Hire Vehicles, The H-Tag Report, 

https://dfhv.dc.gov/publication/h-tag-report. Accordingly, the Court may take judicial notice of 

the H-Tag Report without converting DFHV’s motion to dismiss to a motion for summary 

judgment. See Johnson v. Comm’n on Presidential Debates, 202 F. Supp. 3d 159, 167 (D.D.C. 

2016) (taking judicial notice of “facts that the Federal Election Commission has posted on the 

web”); Sodexo Operations, LLC v. Not-For-Profit Hosp. Corp., 930 F. Supp. 2d 234, 237 n.3 

(D.D.C. 2013) (stating that a court may take judicial notice of public records at the motion to 

dismiss stage) (citing Direct Supply, Inc. v. Specialty Hosps. of Am., LLC, 878 F. Supp. 2d 13, 20 

n.10 (D.D.C. 2012); George v. Bank of Am. N.A., 821 F. Supp. 2d 299, 301 n. 5 (D.D.C. 2011)).

2 For a vehicle to operate as a taxicab in the District of Columbia, the vehicle must 

receive approval from two agencies. First, the vehicle must meet the DFHV’s vehicle-for-hire 

licensing requirements promulgated under D.C. Code § 47-2829(d). Second, the vehicle must 

receive a license plate tag from the District of Columbia Department of Motor Vehicles 

(“DMV”) indicating that it has been licensed as a vehicle-for-hire. H-Tag Report at 1. The 

Court will refer to the DFHV’s license and the DMV’s plate tag collectively as an “H-Tag.” 

Moreover, to operate a licensed taxicab, an individual must receive a DFHV operator’s license. 

D.C. Code § 47-2829(e)(1). Plaintiffs have operator’s licenses and are seeking H-Tags. 
3

companies, taxicab fleets, and taxicab associations.” D.C. Code § 50-301.07(a). Among other 

powers, it has the authority to establish “criteria, standards, and requirements for the licensing of 

public vehicle-for-hire owners, operators, companies, associations, and fleets.” D.C. Code § 50-

301.07(c)(2). 

B. Jeffrey Schaeffer’s Involvement in the Taxicab Market

Mr. Schaeffer allegedly owns several taxicab companies, insurance companies, and a car

repair shop in the District of Columbia, has a personal office in the same building as DFHV,

3

and has held a large share of the District’s taxicab market for more than 20 years. Compl. ¶¶ 5, 

25, ECF No. 1. Plaintiffs assert that Mr. Schaeffer’s market share and proximity to DFHV allow 

him to influence DFHV’s actions; specifically, its implementation of H-Tag regulations. Id. ¶¶ 

5–6, 25. Mr. Schaeffer allegedly has a history of lobbying for favorable taxicab regulations to 

maintain his grip on the taxicab market. See id. ¶¶ 7, 13, 36. 

C. H-Tag Regulation

Before 2009, the District of Columbia operated on an open-taxicab-licensing system,

with no limit on the number of H-Tags that could be issued. See H-Tag Report at 3. In 2009, the 

District of Columbia Taxicab Commission (“DCTC” or the “Commission”), DFHV’s 

predecessor, placed a moratorium on H-Tags, effectively halting any new issuances to individual 

taxicab drivers and taxicab companies.4 See Compl. ¶ 26, ECF No. 1; H-Tag Report at 4. While

 3 Mr. Schaeffer vehemently disputes this claim. See Mem. P. & A. Supp. Mot. Def. 

Jeffrey Schaeffer Dismiss Compl. (“Schaeffer Mem.”) at 26 (asserting that the claim was made 

“without one scintilla of any evidence” and that it is “sanctionable under Rule 11.”), ECF No. 9-

2.

4 The events at issue in this matter occurred when the DCTC served as the District of 

Columbia’s taxicab regulatory agency. As such, Plaintiffs’ allegations refer to the DCTC instead 

of DFHV. However, for simplicity’s sake, the Court will hereafter refer to both organizations as 

DFHV. 
4

the moratorium was in effect, Plaintiffs—taxicab drivers in the District of Columbia who leased 

their cabs from H-Tag holders—inquired about the steps that would be necessary to obtain their 

own H-Tags once DFHV decided to lift the moratorium. Compl. ¶ 26. During a series of 

meetings from 2011 to 2015, DFHV officials allegedly informed Plaintiffs that they would be 

eligible for H-Tags so long as they registered with DFHV, successfully completed a “Taxicab 

Operator’s Course,” and earned the requisite certificate of completion. Id. Accordingly, 

Plaintiffs each registered with DFHV as for-hire candidates and paid $800 to attend and 

complete the course.

5 Id. ¶¶ 26–27; see Certificate of Completion, ECF No. 1-2. 

In September 2016, DFHV lifted the moratorium, but contrary to its alleged

representations to Plaintiffs it adopted a regulation that gave priority licensing only to previous 

H-Tag holders, effectively barring Plaintiffs from obtaining H-Tags. See Compl. ¶¶ 28, 30, 66;

D.C. Mun. Regs. tit. 31, § 1010.20 (2017). The current H-Tag regulation requires Plaintiffs to 

have previously surrendered H-Tags to DFHV—which Plaintiffs have not done because they 

never owned H-Tags—or to register a wheelchair-accessible or electric vehicle—vehicle types 

which Plaintiffs allegedly do not own, or claim are impractical. See Compl. ¶ 15; D.C. Mun. 

Regs. tit. 31, § 1010.20 (2017). 

In late-2017, Plaintiffs filed the complaint initiating this action. Plaintiffs allege that, 

under the semblance of the H-Tag regulation, DFHV and Mr. Schaeffer conspired and attempted 

to monopolize the District of Columbia’s taxicab market. See generally Compl. Plaintiffs argue 

that this alleged anticompetitive conduct was made possible by Mr. Schaeffer’s significant 

market share in the District’s taxicab industry and his lobbyist’s efforts to advocate for favorable 

 5 Plaintiffs’ allegation that they registered with DFHV as for-hire candidates is not 

numbered by paragraph but appears on page four in their complaint. 
5

taxicab regulations. See id. ¶¶ 5, 48, 81. Plaintiffs also argue that DFHV officials

misrepresented the H-Tag eligibility requirements to Plaintiffs, knowing that Plaintiffs would be 

unable to obtain H-Tags once the new regulations were issued. Id. ¶ 58. They assert six claims 

against DFHV: (1) promissory estoppel, (2) fraudulent misrepresentation, (3) negligent 

supervision, (4) equal protection, (5) attempted monopolization, and (6) conspiracy to 

monopolize. See generally id. Plaintiffs assert the equal protection and monopolization claims 

against Mr. Schaeffer as well. See generally id. 

Before the Court are DFHV’s ripe motions to dismiss pursuant to Federal Rules of Civil 

Procedure 12(b)(1), 12(b)(5), and 12(b)(6), and Mr. Schaeffer’s ripe motion to dismiss pursuant 

to Rule 12(b)(6). DFHV argues that (1) the Court lacks standing because Plaintiffs fail to allege 

injury in fact; and (2) Plaintiffs’ claims are unripe because they have neither applied for nor been 

denied H-Tags. See DFHV Mem. at 5–7, ECF No. 18-1. Alternatively, DFHV argues that 

Plaintiffs’ complaint is factually and legally insufficient, and therefore that it fails to state a claim 

upon which the Court may grant relief. See generally DFHV Mem. Mr. Schaeffer also argues 

that Plaintiffs’ allegations are factually and legally insufficient. See generally Schaeffer Mem. 

As discussed below, the Court denies DFHV’s motion to dismiss for lack of subject-matter

jurisdiction but grants both Defendants’ motions to dismiss for failure to state a claim for relief.

III. LEGAL STANDARDS

A. Rule 12(b)(1)

A motion to dismiss for lack of standing and ripeness constitutes a motion under Rule

12(b)(1) of the Federal Rules of Civil Procedure, because both defects are “defects in subjectmatter jurisdiction.” Haase v. Sessions, 835 F.2d 902, 906 (D.C. Cir. 1987). “Because subjectmatter jurisdiction focuses on the court’s power to hear the plaintiff’s claim, a Rule
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12(b)(1) motion imposes on the court an affirmative obligation to ensure that it is acting within

the scope of its jurisdictional authority.” Grand Lodge of Fraternal Order of Police v. Ashcroft, 

185 F. Supp. 2d 9, 13 (D.D.C. 2001) (citing 5A Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure § 1350). Federal courts are courts of limited jurisdiction, and the law

presumes that “a cause lies outside this limited jurisdiction . . . .” Kokkonen v. Guardian Life

Ins. Co. of Am., 511 U.S. 375, 377 (1994). Accordingly, “[a]s a court of limited jurisdiction,”

this Court “begin[s], and end[s], with an examination of [its] jurisdiction.” Gen. Motors Corp. v.

EPA, 363 F.3d 442, 448 (D.C. Cir. 2004).

It is the plaintiff’s burden to establish that the court has subject-matter jurisdiction. Lujan

v. Defs. of Wildlife, 504 U.S. 555, 561 (1992). In determining whether the plaintiff has met this

burden, a court must accept “the allegations of the complaint as true,” Banneker Ventures, LLC

v. Graham, 798 F.3d 1119, 1129 (D.C. Cir. 2015), and “construe the complaint liberally,

granting the plaintiff the benefit of all inferences that can be derived from the facts alleged.” 

Barr v. Clinton, 370 F.3d 1196, 1199 (D.C. Cir. 2004) (internal quotation marks omitted). 

However, “the plaintiff’s factual allegations in the complaint . . . will bear closer scrutiny in

resolving a 12(b)(1) motion than in resolving a 12(b)(6) motion for failure to state a claim.”

Grand Lodge of Fraternal Order of Police, 185 F. Supp. 2d at 13–14 (citing 5A Charles A.

Wright & Arthur R. Miller, Federal Practice and Procedure § 1350) (internal quotation marks

omitted).
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B. Rule 12(b)(6)6

The Federal Rules of Civil Procedure require that a complaint contain “a short and plain 

statement of the claim” to give the defendant fair notice of the claim and the grounds upon which 

it rests. Fed. R. Civ. P. 8(a)(2); accord Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam). 

A motion to dismiss under Rule 12(b)(6) does not test a plaintiff’s ultimate likelihood of success 

on the merits; rather, it tests whether a plaintiff has properly stated a claim. See Scheuer v. 

Rhodes, 416 U.S. 232, 236 (1974), abrogated on other grounds by Harlow v. Fitzgerald, 457 

U.S. 800 (1982); Brewer v. District of Columbia, 891 F. Supp. 2d 126, 130 (D.D.C. 2012). A 

court considering such a motion presumes that the complaint’s factual allegations are true and 

construes them liberally in the plaintiff’s favor. See, e.g., United States v. Philip Morris, Inc., 

116 F. Supp. 2d 131, 135 (D.D.C. 2000).

Nevertheless, “[t]o survive a motion to dismiss, a complaint must contain sufficient 

factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft 

v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 

(2007)). This means that a plaintiff’s factual allegations “must be enough to raise a right to relief 

above the speculative level on the assumption that all the allegations in the complaint are true 

(even if doubtful in fact).” Twombly, 550 U.S. at 555–56 (citations and footnote omitted). 

“Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements,” are therefore insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678. 

 6 Although Mr. Schaeffer attaches several documents outside the pleadings to his motion 

to dismiss, the Court need not convert that motion to one for summary judgment because the 

Court relies only on the pleadings—and on certain public records of which the Court has taken 

judicial notice—to determine the sufficiency of Plaintiffs’ allegations. See Jacobsen v. Oliver, 

201 F. Supp. 2d 93, 98 (D.D.C. 2002) (explaining that a court may evaluate a motion as a motion

to dismiss, not a motion for summary judgment, when the court need not rely on any materials 

outside the pleadings attached to that motion).
8

A court need not accept a plaintiff’s legal conclusions as true, see id., nor must a court presume 

the veracity of legal conclusions that are couched as factual allegations, see Twombly, 550 U.S. 

at 555.

Furthermore, when a plaintiff alleges fraudulent misrepresentation, as Plaintiffs do here, 

the complaint must “state with particularity the circumstances constituting fraud or 

mistake.” Fed. R. Civ. P. 9(b); see, e.g., Jefferson v. Collins, 905 F. Supp. 2d 269, 282 (D.D.C.

2012); 3D Global Sols., Inc. v. MVM, Inc., 552 F. Supp. 2d 1, 7–9 (D.D.C. 2008); Anderson v.

USAA Cas. Ins. Co., 221 F.R.D. 250, 254 (D.D.C. 2004). This heightened pleading standard 

requires a complaint to “state the time, place and content of the false misrepresentations, the fact 

misrepresented and what was retained or given up as a consequence of the fraud.” United States

ex rel. Williams v. Martin-Baker Aircraft Co., 389 F.3d 1251, 1256 (D.C. Cir. 2004) (internal 

quotation marks omitted) (quoting Kowal v. MCI Commc’ns Corp., 16 F.3d 1271, 1278 (D.C.

Cir. 1994)). The plaintiff must also “identify individuals allegedly involved in the 

fraud.” United States ex rel. Williams, 389 F.3d at 1256.

IV. ANALYSIS

As noted above, Defendants move to dismiss the complaint on several grounds. DFHV 

contends that the Court lacks subject-matter jurisdiction because Plaintiffs fail to plead any 

injury in fact, and because the issues raised are unripe for judicial review, given that Plaintiffs 

have neither applied for nor been denied H-Tags. See DFHV Mem. at 5–7. Alternatively, 

DFHV argues that Plaintiffs fail to state a claim because their allegations are conclusory in 

nature. See id. at 8–13. DFHV further argues that Plaintiffs’ antitrust claims fail because they 

do not establish antitrust standing and because DFHV is immune to antitrust liability. See id. at 

15–20. Mr. Schaeffer contends that Plaintiffs fail to properly allege several elements of their 
9

antitrust claims, that those claims fall outside the statute of limitations, and that he is also

immune to antitrust liability. See generally Schaeffer Mem. Addressing each argument in turn, 

beginning with DFHV’s jurisdictional arguments, the Court concludes that, although it has 

jurisdiction over this action, Plaintiffs’ allegations fail to state a claim upon which relief can be 

granted. Accordingly, Defendants’ motions to dismiss are granted.

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A. Standing & Ripeness

The Court first disposes of DFHV’s motion to dismiss for lack of subject-matter

jurisdiction. “Article III of the Constitution limits the jurisdiction of federal courts to ‘actual 

cases or controversies between proper litigants.’” Mendoza v. Perez, 754 F.3d 1002, 1010 (D.C. 

Cir. 2014) (quoting Fla. Audubon Soc’y v. Bentsen, 94 F.3d 658, 661 (D.C. Cir. 1996)). To 

demonstrate the existence of a case or controversy at the pleading stage, a plaintiff must establish 

the “irreducible minimum” of constitutional standing. Lujan v. Defs. of Wildlife, 504 U.S. 555, 

560 (1992). First, the plaintiff must allege a concrete and particularized injury in fact. Id. Next, 

the plaintiff must trace the challenged action to the defendant, and not to any independent action 

 7 As noted above, DFHV has also moved to dismiss Plaintiffs’ complaint for insufficient 

service of process. See generally DFHV Mot. Dismiss Insufficient Service Process, ECF No. 15. 

Under Federal Rule of Civil Procedure 4(j)(2) DFHV, as a municipally-created governmental 

organization, may be served by “(A) delivering a copy of the summons and of the complaint to 

[the Mayor]; or (B) serving a copy of each in the manner prescribed by [District of Columbia]

law[.]” Under District of Columbia law, service may be effected by mailing a copy of the 

summons and complaint to the District of Columbia’s Mayor and Attorney General “by 

registered or certified mail, return receipt requested.” D.C. Super. Ct. R. Civ. P. 4(j)(3). 

Plaintiffs effected service on DFHV via this method, albeit after the Court-ordered deadline. See

Pls. Proof Service Ex., ECF No. 16-1. Because the Court dismisses Plaintiffs’ complaint on 

other grounds, and because service was effected, the Court exercises its authority under Federal 

Rule 6(b) to relieve Plaintiffs from the Court’s November 30, 2017 Minute Order requiring 

proper service by December 7, 2017. Accordingly, it denies DFHV’s motion to dismiss under 

Federal Rule 12(b)(5). 
10

of a third party. Id. Last, the plaintiff must show that the injury is redressable by a favorable 

decision. Id. at 561. 

Injury in fact is an invasion of a legally cognizable interest that is “actual and imminent, 

not conjectural or hypothetical.” Chlorine Inst., Inc. v. Fed. R.R. Admin., 718 F.3d 922, 927 

(D.C. Cir. 2013); Abulhawa v. U. S. Dep’t of Treasury, 239 F. Supp. 3d 24, 32 (D.D.C. 2017); 

see also Parker v. District of Columbia, 478 F.3d 370, 377 (D.C. Cir. 2007) (“[W]hen the 

Supreme Court used the phrase ‘legally protected interest’ as an element of injury-in-fact, it 

made clear it was referring only to a ‘cognizable interest’”). Economic injuries, however slight, 

suffice to establish injury in fact, even when government action causes those injuries. 

Neighborhood Assistance Corp. of Am. v. CFPB, 907 F. Supp. 2d 112, 121 (D.D.C. 2012) (citing 

Clinton v. City of N.Y., 524 U.S. 417, 432–33 (1998); Cal. Forestry Ass’n v. Thomas, 936 F. 

Supp. 13, 17 (D.D.C. 1996)); see also Conservation Law Found. v. Pritzker, 37 F. Supp. 3d 234, 

243 (D.D.C. 2014) (holding that the economic harm that the plaintiff claimed would arise from a

Department of Commerce decision was “undeniably a cognizable interest for purposes of 

standing”) (quoting Lujan, 504 U.S. at 562–63). 

Moreover, when pleading injury in fact, “[g]eneral factual allegations of injury resulting 

from the defendant’s conduct may suffice, for on a motion to dismiss we presum[e] that general 

allegations embrace those specific facts that are necessary to support the claim.” Osborn v. Visa 

Inc., 797 F.3d 1057, 1063–64 (2015). Thus, when determining whether the plaintiff suffered an 

injury in fact, the Court focuses “not on the availability of alternative remedies,” but on the 

plaintiff’s general allegations of injury. Cmty. Nutrition Inst. v. Block, 698 F.2d 1239, 1247 

(D.C. Cir. 1983); cf. Chamber of Commerce v. SEC, 412 F.3d 133, 138 (D.C. Cir. 2005) (holding
11

that “the inability of consumers to buy a desired product . . . constitute[s] injury-in-fact even if 

they could ameliorate the injury by purchasing some alternative product”). 

The ripeness doctrine, which addresses whether “a federal court can or should decide a 

case,” is bound up with the requirements of Article III standing. Am. Petroleum Inst. v. EPA, 

683 F.3d 382, 386 (D.C. Cir. 2012) (citation omitted). Accordingly, in determining whether a 

case is ripe, the Court must determine whether the plaintiff suffered an injury in fact that is 

“imminent” or “certainly impending,” and it must determine whether the defendant’s action was 

sufficiently “final.” Id. at 386–87. In so doing, the Court must ensure that judicial determination 

would not interfere “with an agency policy that is currently undergoing change or development.” 

Great Lakes Gas Transmission Ltd. P’ship v. Fed. Energy Regulatory Comm’n, 984 F.2d 426, 

431 (D.C. Cir. 1993). 

DFHV argues that the Court lacks jurisdiction over this matter because (1) Plaintiffs do 

not sufficiently allege injury in fact; and (2) Plaintiffs have not applied for H-Tags under the new 

regulations and therefore have failed to exhaust their administrative options, rendering their 

claims unripe for judicial review. DFHV Mem. at 5–7. Specifically, DFHV asserts that 

Plaintiffs fail to allege injury in fact because they do not “claim that they have been denied HTags,” nor do they argue “that it is futile for them to make such an application.” Id. at 6. DFHV 

further asserts that Plaintiffs have not suffered actual injury in fact because they may obtain HTags if they purchase wheelchair-accessible or electric-powered vehicles. See id. at 5–7. These 

arguments, however, are misguided.

First, Plaintiffs sufficiently allege injury in fact. They claim that DFHV’s 

misrepresentations about H-Tag eligibility requirements cost them 800 dollars in tuition for the 

Taxicab Operator’s Course, and that Defendants’ conspiracy to monopolize the taxicab market 
12

cost them profits that they would have obtained had they been able to operate their own taxis 

rather than been forced to lease taxis from others. See Compl. ¶¶ 27–28, 54–55, 82, 87. These 

types of economic injuries have long been accepted as satisfying the injury in fact requirement. 

See Carpenters Indus. Council v. Zinke, 854 F.3d 1, 5 (D.C. Cir. 2017) (holding that economic 

harm “clearly constitutes injury in fact,” that “the amount is irrelevant,” and that one dollar of 

harm is sufficient for standing purposes). Furthermore, DFHV’s contention that Plaintiffs fail to 

allege injury in fact because they could pursue an alternative method of obtaining H-Tags—

purchasing new cars—is not dispositive because when “determining whether [Plaintiffs have] 

alleged a definable and discernable injury, the focus is on the plaintiffs’ allegations, not on the 

availability of alternative remedies.” Cmty. Nutrition Inst., 698 F.2d at 1247.8

Second, Plaintiffs’ claims concerning DFHV’s H-Tag regulation and their ineligibility for 

H-Tags under that regulation are ripe for judicial review. DFHV’s reliance on American 

Petroleum Institute v. EPA, 683 F.3d 382 (D.C. Cir. 2012), to suggest that Plaintiffs must apply 

for and be denied H-Tags before bringing this action is unpersuasive because it involved an 

inapposite agency action. See DFHV Mem. at 7. In that case, the D.C. Circuit held that the

plaintiff’s challenge to an agency rulemaking was unripe for judicial review because the agency 

released a notice of proposed rulemaking after the parties completed briefing that, if adopted, 

would alter the challenged regulation and therefore refine the action’s legal issues. Id. at 388. 

Unlike the agency in American Petroleum, however, DFHV provides no argument that either 

their H-Tag regulation or Plaintiffs’ inability to obtain H-Tags are tentative in any sense.

 8 Moreover, DFHV’s hypothetical alternative here would require Plaintiffs to spend 

additional money to purchase new vehicles, when DFHV’s alleged misrepresentations led 

Plaintiffs to believe they could obtain H-Tags with regular taxicabs. That still constitutes an 

economic injury, albeit an alternative one. 
13

Moreover, Plaintiffs assert that the H-Tag regulation presently bars their eligibility for H-Tags, 

and therefore that their applications would be futile. Compl. ¶¶ 28–30; see also Nat’l Envtl. Dev.

Assocs. Clean Air Project v. EPA, 752 F.3d 999, 1003, 1007–08 (D.C. Cir. 2014) (holding a

matter ripe where an EPA directive had yet to be implemented but created a “binding and 

enforceable policy” that would likely cause Plaintiff to suffer direct competitive injury in the 

near future). 9 Plaintiffs are not required to apply for and be denied an H-Tag in order to 

challenge the regulation that plainly prohibits them from qualifying for one.

Accordingly, because Plaintiffs’ claims are ripe for review and they possess standing to 

bring them, this matter is within the Court’s subject-matter jurisdiction. Plaintiffs allege an 

actual injury and do not ask the Court to speculate as to the possible adverse effects of 

Defendants’ alleged misconduct. The Court therefore denies DFHV’s motion to dismiss for lack

of subject-matter jurisdiction and will now address Defendants’ motions to dismiss for failure to 

state a claim for relief. 

B. Individual Claims 

Having determined that Plaintiffs have standing and that the action is ripe, the Court will 

evaluate Plaintiffs’ specific claims. Plaintiffs assert promissory estoppel, fraudulent 

 9 Plaintiffs also sufficiently plead the other elements of standing; causation and 

redressability. Plaintiffs allege that DFHV and Mr. Schaeffer collaborated to create and 

implement the H-Tag regulation that directly bars Plaintiffs’ ability to own, operate, and profit 

from taxicabs. Compl. ¶¶ 28–30. Accordingly, they trace their economic injuries directly to the 

actions of DFHV and Mr. Schaeffer, not to the “action of some third party not before the 

[C]ourt.” Chesapeake Climate Action Network v. Exp.-Import Bank of the United States, 78 F. 

Supp. 3d 208, 224 (D.D.C. 2015) (internal quotation marks omitted). Furthermore, Plaintiffs 

seek to recoup the lost profits that they would allegedly have received if granted H-Tags, and 

they ask the Court to order DFHV to issue them the H-Tags that they claim have been 

improperly withheld. They have thus established a “causal connection between the alleged 

injury and the judicial relief requested” sufficient to grant standing. Citizens for Responsibility

& Ethics v. U.S. Dep't of Treasury, 21 F. Supp. 3d 25, 36 (D.D.C. 2014). 
14

misrepresentation, and negligent supervision claims against DFHV, and equal protection and 

antitrust claims against both DFHV and Mr. Schaeffer. As explained below, the Court holds that 

Plaintiffs fail to state any claim upon which relief may be granted. Accordingly, the Court 

dismisses Plaintiffs’ complaint in its entirety. 

1. Promissory Estoppel

First, the Court addresses Plaintiffs’ promissory estoppel claim against DFHV. To 

establish a prima facie case of promissory estoppel, Plaintiffs must sufficiently allege: (1) the 

existence of a promise; (2) that DFHV expected Plaintiffs to take definite action in reliance on 

that promise; (3) that Plaintiffs reasonably relied on DFHV’s promise to their detriment; and (4) 

that the promise must be enforced to avoid injustice. Morris v. Runyon, 870 F. Supp. 362, 373 

(D.D.C. 1994); see also Robbins v. Reagan, 780 F.2d 37, 51 n.22 (D.C. Cir. 1985). DFHV 

argues that Plaintiffs fail to allege a promise, and that even if they did, their reliance on it was 

unreasonable because “[P]laintiffs allege only that they were relying on an anticipated change in 

the law to make them eligible for H-Tags.” DFHV Mem. at 8–9. The Court agrees that 

Plaintiffs fail to plead reasonable reliance on the alleged promise made by unidentified DFHV 

officials.10 

Plaintiffs allege that DFHV promised to regulate the taxicab market in a particular 

fashion. They claim that “[d]uring a series of meetings from 2011 up through and including 

2015, they were repeatedly told by taxicab commission officials that if they registered with the 

DFHV and secured the requisite certificate . . . attended and completed various classes at UDC, 

 10 DFHV also argues that Plaintiffs’ claim fails because promissory estoppel is 

inapplicable against the District of Columbia, and because Plaintiffs seek only monetary 

damages. DFHV Mem. at 8. However, Plaintiffs seek equitable relief along with monetary 

damages, see Compl. ¶¶ 34, 69, and the Court need not address these arguments because 

Plaintiffs fail to sufficiently plead the elements of promissory estoppel. 
15

they would be entitled to receive an H tag.” Compl. ¶ 26. Plaintiffs do not identify the 

“officials” who made these representations, nor do they describe the circumstances of the 

“meetings.” Plaintiffs do, however, acknowledge that they were aware at this time that their HTag eligibility would be governed by DFHV regulations ending the H-Tag moratorium. They 

state that they “desired to know once the moratorium was lifted what they had to do to secure an 

H tag and a valid license so they could work in the District driving their own cab.” Compl. ¶ 26

(emphasis added). They also state that “they subsequently learned that the new regulations . . .

specifically barred them permanently from applying for an H tag, much to their astonishment.” 

Compl. ¶ 28. In other words, they claim that the unidentified “taxicab officials” promised that 

the District of Columbia would promulgate an H-Tag regulation favorable to their interests, and 

they were harmed when the regulation was unfavorable.

11 

It was not reasonable for Plaintiffs to rely on these alleged promises made by individual 

DFHV officials given that the promises could only become operative through regulations issued

by DFHV, incorporating public input. Courts have long held that oral promises by individual 

officials are not sufficient to bind the government to a course of action. See Heckler v. Cmty.

Health Servs. of Crawford Cty, Inc., 467 U.S. 51, 64–65 (1984) (holding that “estoppel cannot 

be erected on the basis of . . . oral advice,” especially “informal advice”); Genesis Health 

Ventures, Inc. v. Sebelius, 798 F. Supp. 2d 170, 185 (D.D.C. 2001) (holding that the plaintiff’s 

 11 Plaintiffs also allege, in support of this claim, that they were “encouraged” to take the 

taxicab operator’s course by another unidentified DFHV official, Compl. ¶ 52, and that DFHV 

announced on September 15, 2015 that “there would be a new path for taxicab drivers to secure 

an H tag,” Compl. ¶ 51. However, the complaint and Plaintiffs’ affidavit make clear that the 

alleged encouragement occurred while Plaintiffs were already attending the course, so they could 

not have relied on that encouragement to enroll in the course. Mem. P. & A. Supp. Pls.’ Opp’n 

Dep’t for Hire-Vehicles Mot. to Dismiss (“Pls. Opp’n”) Ex. 1 ¶ 14, ECF No. 21-1. And 

Plaintiffs do not explain whether what was announced on September 15, 2015 matched the 

alleged promises made over the previous four years. 
16

“decision to rely on [oral] advice [of a government intermediary] in deciding not to maintain 

records . . . was not reasonable”). Moreover, “’[w]hen the agent of the government whose 

representations are relied upon plainly lacks the authority to do whatever he has promised . . .

‘the promisee's reliance cannot be ‘reasonable.’” Winder v. Erste, 60 F. Supp. 3d 43, 51 (D.D.C. 

2014) (quoting District of Columbia v. Brookstowne Cmty. Dev. Co., 987 A.2d 442, 450 (D.C. 

2010)). Plaintiffs fail to state that the promisers here had any involvement whatsoever in the 

promulgation of the H-Tag regulation, much less that they had authority to influence that 

regulation. Furthermore, the H-Tag Report issued publicly on August 28, 2015 makes clear that 

there were several competing positions on how to most equitably end the H-Tag moratorium. 

See H-Tag Report at 5–6. It was unreasonable for Plaintiffs to rely on the position that would 

benefit them, ignoring the other positions. See United States v. Exxon Corp., 561 F. Supp. 816, 

845 (D.D.C. 1983) (holding that it was not reasonable for the plaintiff to rely on “informal 

statements by agency employees” while ignoring statements to the contrary). Accordingly, 

Plaintiffs’ claim for promissory estoppel against DFHV must be dismissed because Plaintiffs fail 

to plead that their reliance on the alleged promises of unidentified DFHV officials was 

reasonable. 

2. Fraudulent Misrepresentation

Second, the Court addresses Plaintiffs’ fraudulent misrepresentation claim against 

DFHV, which is based on statements made by two unidentified DFHV officials. See Compl. ¶¶ 

56–59. “To establish a claim for fraudulent misrepresentation under District of Columbia law, a 

plaintiff must allege: ‘(1) that a false representation was made, (2) in reference to a material fact, 

(3) with knowledge of its falsity, (4) with intent to deceive, and (5) action taken in detrimental 

reliance upon the representation.’” Boomer Dev., LLC v. Nat’l Ass’n of Home Builders of U.S., 
17

258 F. Supp. 3d 1, 13 (D.D.C. 2017) (quoting Sibley v. St. Albans Sch., 134 A.3d 789, 808–09 

(D.C. 2016)). Federal Rule of Civil Procedure 9(b) requires a complaint to “state with 

particularity, the circumstances constituting fraud.” Fed. R. Civ. P. 9(b). In other words, it must 

state the “who, what, where, when, and how” surrounding the fraudulent conduct. FTC v.

Cantkier, 767 F. Supp. 2d 147, 154 (D.D.C. 2011). 

The Court’s analysis begins and ends with Plaintiffs’ failure to identify the individuals 

involved in the alleged fraudulent conduct, as required by Rule 9(b)’s heightened pleading 

standard. To survive a motion to dismiss, a Plaintiff alleging fraud must “identify with 

specificity” the individuals involved in the fraudulent activity. United States ex rel. Williams v.

Martin-Baker Aircraft Co., 389 F.3d 1251, 1257 (D.C. Cir. 2004) (citing United States ex rel.

Joseph v. Cannon, 642 F.2d 1373, 1385–86 (D.C. Cir. 1981)). For instance, in Martin-Baker,

this Circuit dismissed a plaintiff’s fraud claim against his former employer because, among other 

pleading deficiencies, the plaintiff failed to identify the individuals involved in the alleged 

fraudulent conduct, despite having been employed by them for five years. Id. 

Similarly, Plaintiffs here allege that DFHV officials misrepresented the H-Tag 

requirements at a series of meetings throughout a five-year period, but they surprisingly cannot 

identify one specific official who made these representations. See generally Compl. (referring 

only to “unknown DFHV officials”). A complaint with such a deficiency not only fails to 

provide the defendant with sufficient information to formulate a response, but also subjects the 

defendant to “vague, potentially damaging accusations of fraud” without proper support. See

Martin-Baker, 389 F.3d at 1257; Acosta Orellana v. CropLife Int’l, 711 F. Supp. 2d 81, 97 

(D.D.C. 2010). Accordingly, Plaintiffs’ claim for fraudulent misrepresentation against DFHV 

must be dismissed because Plaintiffs fail to plead the “who” involved in the fraudulent conduct. 
18

3. Negligent Supervision 

Third, the Court briefly addresses Plaintiffs’ negligent supervision claim against DFHV. 

To assert a claim for negligent supervision, Plaintiffs must show: “(1) that [DFHV] ‘knew or 

should have known its employee[s] behaved in a dangerous or otherwise incompetent manner,’

and (2) that [DFHV], ‘armed with that actual or constructive knowledge, failed to adequately 

supervise [its employees].’” Daisley v. Riggs Bank, N.A., 372 F. Supp. 2d 61, 79 (D.D.C. 2005) 

(quoting Giles v. Shell Oil Corp., 487 A.2d 610, 613 (D.C. 1985)). Moreover, Plaintiffs must 

“identify the individual[s] over whom [DFHV] had a duty to supervise, such that the failure to 

properly exercise this duty would give rise to a negligent supervision claim by the plaintiff.”

Acosta Orellana v. CropLife Int’l, 711 F. Supp. 2d 81, 100 (D.D.C. 2010) (citing Brown v. 

Argenbright Sec., Inc., 782 A.2d 752, 760 (D.C. 2001)). DFHV argues that this claim is 

deficient because Plaintiffs’ pleading is conclusory. DFHV Mem. at 12–13. The Court agrees. 

Plaintiffs fail to properly allege the elements of negligent supervision. First, Plaintiffs 

fail to allege that DFHV knew or should have known that its employees made the alleged 

misrepresentations. 12 Second, Plaintiffs fail to identify the individuals over whom DFHV had a 

duty to supervise. Moreover, Plaintiffs’ lone allegation is conclusory in nature—it is a mere 

recitation of the claim itself, that DFHV failed to adequately monitor its employees’ alleged 

misrepresentations about H-Tag eligibility requirements. Compl. ¶ 61; see Spiller v. District of

Columbia, 302 F. Supp. 3d 240, 254–55 (D.D.C. 2018) (dismissing a negligent supervision claim 

against the District because the complaint consisted of conclusory statements that the District 

failed to properly supervise and train its officers, but it did not reference “any of the necessary 

 12 Furthermore, as discussed above, Plaintiffs fail to sufficiently allege the 

misrepresentations upon which their negligent supervision claim is based. 
19

legal elements”). Because Plaintiffs fail to plead the elements of negligent supervision, and 

thereby fail to provide DFHV “fair notice of what the claim is and the grounds on which it rests,” 

this claim must be dismissed. Twombly, 550 U.S. at 555. 

4. Equal Protection 

Fourth, the Court addresses Plaintiffs’ equal protection claim against DFHV and Mr. 

Schaeffer. The Fourteenth Amendment’s Equal Protection Clause provides that no State shall 

“deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. 

XIV, § 1. 13 An equal protection claim thus arises where an individual alleges “that he or she 

received differential treatment by the government due to membership in a protected class, such 

as one based on race, national origin, or gender,” Kelley v. District of Columbia, 893 F. Supp. 2d 

115, 122 (D.D.C. 2012) (citing Jones v. Helms, 452 U.S. 412, 424 n.23 (1981)), or that the 

challenged regulation implicates a fundamental right, Heller v. Doe, 509 U.S. 312, 319 (1993). 

However, “a classification neither involving fundamental rights nor proceeding along 

suspect lines is accorded a strong presumption of validity . . . [and] cannot run afoul of the Equal

Protection Clause if there is a rational relationship between the disparity of treatment and some 

legitimate governmental purpose.” Id. at 319-20. For such a classification, “[e]ven at the motion 

to dismiss stage, a plaintiff alleging an equal protection violation must plead facts that establish 

that there is not ‘any reasonable conceivable state of facts that could provide a rational basis for 

the classification.’” Hettinga v. United States, 677 F.3d 471, 479 (D.C. Cir. 2012) (quoting 

Dumaguin v. Sec’y of Health and Human Servs., 28 F.3d 1218 1222 (D.C. Cir. 1994)). Under

this standard, “a law will be sustained if it can be said to advance a legitimate government 

 13 The Fourteenth Amendment’s equal protection clause applies to the District of 

Columbia via the Fifth Amendment’s due process clause. Creese v. District of Columbia, 281 F. 

Supp. 3d 46, 52 n.2 (D.D.C. 2017) (citing Bolling v. Sharpe, 347 U.S. 497, 499 (1954)). 
20

interest, even if the law seems unwise or works to the disadvantage of a particular group, or if the 

rationale for it seems tenuous." Gordon v. Holder, 721 F.3d 638, 656 (D.C. Cir. 2013) (quoting 

Romer v. Evans, 517 U.S. 620, 632 (1996)) (internal quotation marks omitted). 

DFHV urges the Court to dismiss this claim because Plaintiffs fail to allege that they 

belong to a protected class, they fail to allege that they were deprived of a fundamental right, and 

they fail to allege that DFHV lacked a rational basis for promulgating the H-Tag regulation. 

DFHV Mem. at 13–14.

14 Applying the principles laid out above, this argument is well-taken.

First, Plaintiffs do not specify that they belong to a protected class, but rather only that

DFHV and Mr. Schaeffer “have treated the class of plaintiffs named herein (and other drivers) in 

an unequal manner.” Compl. ¶ 67. This type of amorphous class based on employment status is 

not a “protected class, such as one based on race, national origin, or gender,” justifying 

heightened constitutional scrutiny. Kelley, 893 F. Supp. 2d at 122. 

Second, Plaintiffs do not plead a deprivation of any fundamental right. They allege that 

the H-Tag regulation deprives them of the “opportunity to work” as self-employed taxicab 

drivers. Compl. ¶ 65. However, “the right to engage in a chosen profession is not a fundamental 

right that triggers heightened scrutiny under the Equal Protection Clause.” Doe v. Rogers, 139 F. 

Supp. 3d 120, 156 (D.D.C. 2015) (collecting cases); see also Schware v. Bd. of Exam’rs, 353

U.S. 232, 239 (1957) (allowing a state to require “high standards of qualification” to practice law

so long as those standards had a rational connection to an applicant’s fitness to practice).

Accordingly, because Plaintiffs fail to show that the H-Tag regulation singles out a protected 

 14 Plaintiffs somewhat confusingly argue that their equal protection claim does not 

challenge the validity of the H-Tag regulation itself, but only the manner in which it was drafted 

and implemented. Pls. Opp’n, at 16, ECF No. 21. However, regardless of how Plaintiffs frame 

their argument, they do challenge the validity of the H-Tag regulation, at least as applied to 

them, because the alleged unconstitutional differential treatment stems from that regulation. 
21

class or implicates a fundamental right, they must allege that there is no rational basis for the HTag regulation. Heller, 509 U.S. at 319–20. 

Applying the rational basis standard, Plaintiffs have failed to negate “every conceivable 

basis which might support the [H-Tag regulation].” Gordon, 721 F.3d at 656 (D.C. Cir. 2013) 

(quoting FCC v. Beach Commc’ns, 508 U.S. 307, 315 (1993)) (internal quotations omitted). As 

DFHV notes, the Notice of Final Rulemaking for the H-Tag regulation lists the rational reasons

for the regulation’s implementation. 15 According to the Notice, among other reasons, DFHV 

restricted the granting of H-Tags for regular taxicabs to avoid “an unlimited avenue for licenses 

that would flood the market with new taxicabs at a time when taxicab service is shrinking, and 

passenger demands for accessible service and efficient vehicles is on the rise.” 64 D.C. Reg. 

2255 (Feb. 24, 2017). This justification is adequate under the highly deferential rational basis 

review. See Gebresalassie v. District of Columbia, 170 F. Supp. 3d 52, 68 (D.D.C. 2016) 

(upholding DFHV’s for-hire vehicle licensing scheme under rational basis review). Because

Plaintiffs fail to allege that the H-Tag regulation implicates a protected class or a fundamental 

right, and because Plaintiffs fail to negate the rational bases on which the regulation was 

promulgated, Plaintiffs’ equal protection claim must be dismissed.

5. Antitrust Violations Under the Sherman Act and D.C. Code § 28-450316

Fifth, and finally, the Court addresses Plaintiffs’ claims for (1) attempted 

monopolization; and (2) conspiracy to monopolize, brought against Mr. Schaeffer and DFHV

 15 As with the H-Tag Report, the Court may take judicial notice of this public record at 

the motion to dismiss stage. See D.C. Prof’l Taxicab Drivers Ass’n v. District of Columbia, 880 

F. Supp. 2d 67, 72 (D.D.C. 2012) (taking judicial notice of a DCTC Notice of Final Rulemaking 

in deciding a motion to dismiss).

16 It is unclear from the complaint whether Plaintiffs bring their antitrust claims under the 

Sherman Act, the District of Columbia Code, or both. See Compl. ¶¶ 84–87. However, the 

Court must construe Plaintiffs’ complaint liberally, and it will therefore presume that Plaintiffs 
22

under the Sherman Act, 15 U.S.C. § 2, and D.C. Code § 28-4503.17 To sufficiently assert a

claim for attempted monopolization, a plaintiff must allege that Defendants had (1) “a specific 

intent to destroy competition or control competition in the relevant market,” and (2) “a 

dangerous probability of success in actually monopolizing the relevant market.” Dial A Car, Inc.

v. Transp., Inc., 884 F. Supp. 584, 589 (D.D.C. 1995). To sufficiently assert a claim for 

conspiracy to monopolize, a plaintiff must allege “(1) the existence of a combination or 

conspiracy to monopolize, (2) overt acts done in furtherance of the combination or conspiracy, 

(3) an effect upon an appreciable amount of interstate—or intrastate, for a claim under the D.C. 

Code—commerce, and (4) specific intent to monopolize a designated segment of commerce.”

GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27, 44 (D.D.C. 1998) (citation 

omitted). 

Defendants make several arguments for why these antitrust claims should not survive. 

DFHV urges the Court to dismiss the claims for failure to adequately plead “antitrust standing,”

and in the alternative it insists that it is immune from antitrust liability as an instrumentality of 

the District of Columbia government. See DFHV Mem. at 15–20. Mr. Schaeffer argues, among 

other arguments, that he is similarly immune from antitrust liability under the Noerr-Pennington

doctrine. Schaeffer Mem. at 25–29. Because the Court agrees that both Defendants are immune 

 

bring their claims under both statutes. See Kettey v. Saudi Ministry of Educ., 53 F. Supp. 3d 40, 

53 (D.D.C. 2014) (“The complaint is construed liberally in the plaintiff's favor, and the plaintiff 

is given the benefit of all inferences that can be derived from the facts alleged.”); see also Pls. 

Opp’n at 22 (claiming that Plaintiffs have brought claims arising under the Sherman Act).

17 Courts look to Sherman Act case law when interpreting the District of Columbia’s 

antitrust laws, because the language of D.C. Code § 28-4503 mirrors the federal statute.

See GTE New Media Servs., Inc. v. Ameritech Corp., 21 F. Supp. 2d 27, 45 (D.D.C. 1998)

(noting that the “analysis for federal antitrust claims provide much force” with respect to the

District’s antitrust provisions because those provisions “essentially track” the language of federal

antitrust statutes). The Court will therefore analyze Plaintiffs’ D.C. Code and Sherman Act

monopolization allegations together. 
23

from antitrust liability under the facts alleged, and therefore that the antitrust claims must be 

dismissed, it need not consider the sufficiency of Plaintiffs’ factual allegations. The Court will 

discuss each immunity argument in turn.

i. DFHV is immune from antitrust liability under the state-action doctrine

The Court first addresses whether DFHV is entitled to state-action immunity from

antitrust liability. Sub-state governmental entities are immune from antitrust liability so long as 

they act “pursuant to state policy to displace competition with regulation” that is “clearly 

articulated and affirmatively expressed.” FTC v. Phoebe Putney Health Sys., 568 U.S. 216, 226 

(2013) (quoting Lafayette v. La. Power & Light Co., 435 U.S. 389, 413 (1978)). A governmental 

entity’s actions are “clearly articulated and affirmatively expressed as state policy . . . if the 

anticompetitive effect was the ‘foreseeable result’ of what the [s]tate authorized.” Id. at 226–27

(quoting Hallie v. Eau Claire, 471 U.S. 34, 42 (1985)). But, “a state legislature need not 

‘expressly state in a statute or its legislative history that the legislature intends for the delegated 

action to have anticompetitive effects.’” Id. at 226 (quoting Hallie, 471 U.S. at 43).

The Supreme Court’s decision in City of Columbia v. Omni Outdoor Advertising provides 

a helpful framework for analyzing local regulations that appear to restrict competition. 499 U.S. 

365 (1991). In that case, the Court evaluated whether a municipal ordinance that restricted the 

“size, location, and spacing of billboards” throughout Columbia, South Carolina violated the 

federal antitrust laws. Id. at 368–70. The plaintiff, a new entrant to the billboard market, alleged 

that the ordinance was “the result of an anticompetitive conspiracy between city officials” and 

one of the plaintiff’s largest local competitors, and consequently that the alleged conspiracy 

“stripped both parties of any immunity they might otherwise enjoy from the federal antitrust 

laws.” Id. at 369. Disagreeing, the Court held that “no more is needed to establish . . . the city’s 
24

authority to regulate than its unquestioned zoning power over the size, location, and spacing of 

billboards,” specifically authorized by a state statute. Id. at 372 (citations omitted). It explained 

that South Carolina clearly articulated its authorization of the city’s anticompetitive conduct 

because suppression of competition was the “foreseeable result” and the “very purpose” of 

regulation limiting the billboard supply. Id. at 373. The Court reaffirmed its “rejection of any 

interpretation of the Sherman Act that would allow plaintiffs to look behind the actions of state 

sovereigns to base their claims on ‘perceived conspiracies to restrain trade.’” Id. at 379 (quoting 

Hoover v. Ronwin, 466 U.S. 558, 580 (1984)). It also reiterated that “any action that qualifies as 

state action is ‘ipso facto . . . exempt from the operation of the antitrust laws’” because the 

Sherman Act “condemns trade restraints, not political activity.” Id. (citations omitted).

Like the Omni plaintiffs, Plaintiffs here allege that the H-Tag regulation is the result of a 

conspiracy between DFHV and Mr. Schaeffer, their potential competitor, to suppress 

competition and monopolize the taxicab market. See Compl. ¶¶ 71–87. And like the state statute 

authorizing the billboard regulation in Omni, here, DFHV had the authority and duty—granted 

by the District of Columbia—to regulate the District’s taxicab industry, and DFHV utilized that 

authority to implement the H-Tag regulation.

18 See D.C. Code § 50-301.07. 

While DFHV’s H-Tag regulation has, without a doubt, displaced competition in the 

District’s taxicab market, such displacement is the “inherent, logical, [and] ordinary result of the 

exercise of authority delegated by the [District].” N.C. State Bd. of Dental Exam’rs v. FTC, 135 

 18 With respect to Plaintiffs’ D.C. Code claim, in addition to the state action immunity 

doctrine, D.C. Code § 28-4518 explicitly precludes antitrust liability for “conduct or activity 

specifically regulated, permitted, or required by any regulatory body, agency, or commission 

acting under statutory authority of the District of Columbia . . . .” D.C. Code § 28-4518 (2018). 

Because DFHV acted under its statutory authority to regulate the District of Columbia taxicab 

market when it passed the H-Tag regulation, see D.C. Code § 50-301.07, section 28-4518 

immunizes that activity. 
25

S. Ct. 1101, 1112 (2015) (internal quotations and citation omitted). The H-Tag regulation’s 

anticompetitive effects were foreseeable because the very function of regulation and licensure is 

to displace and limit business in a way that usually prevents or inhibits new competition. 

Plaintiffs’ allegations that Mr. Schaeffer kept an office in the same building as DFHV, Compl. ¶ 

25, and that he otherwise influenced the H-Tag regulation, Compl. ¶¶ 7, 28, 58, do not strip 

DFHV of its immunity for regulatory activity. Accordingly, the Court dismisses Plaintiffs’

antitrust claims against DFHV.

ii. Mr. Schaeffer is immune from antitrust liability under the Noerr-Pennington doctrine19

The Court next addresses whether Mr. Schaeffer’s alleged efforts to persuade DFHV to 

pass the H-Tag regulation are immune from antitrust liability under the Noerr-Pennington 

doctrine. The Court holds that they are. 

The Noerr-Pennington doctrine, “regardless of [the defendant’s] intent or purpose,” 

United Mine Workers v. Pennington, 381 U.S. 657, 670 (1965), immunizes the concerted efforts 

of individuals “to persuade the legislature or the executive to take particular action with respect 

to a law that would produce a restraint or a monopoly.” E. R. Presidents Conference v. Noerr

Motor Freight, Inc., 365 U.S. 127, 136 (1961). Efforts by private individuals to secure 

legislation are immune from antitrust liability “because ‘[legislative] branches of government act 

on behalf of the people, and to a very large extent, the whole concept of representation depends 

upon the ability of people to make their wishes known to their representatives.’” City of

Moundridge v. Exxon Mobil Corp., 471 F. Supp. 2d 20, 37 (D.D.C. 2007) (quoting Noerr Motor

 19 The Noerr-Pennington doctrine applies equally to antitrust violations brought under the 

D.C. Code and under the Sherman Act. See WAKA, LLC v. DC Kickball, 517 F. Supp. 2d 245, 

252 (D.D.C. 2007) (applying Noerr-Pennington to antitrust claims brought under D.C. Code § 

28-4503). 
26

Freight, Inc., 365 U.S. at 137). In this vein, the Supreme Court has expressed that holding 

defendants liable for antitrust violations solely because they lobbied for certain laws “would 

substantially impair the power of government to take actions through its legislature and 

executive that operate to restrain trade.” Noerr Motor Freight, Inc., 365 U.S. at 137. The NoerrPennington doctrine applies to efforts intended to persuade administrative agencies like

DFHV—“which are both creatures of the legislature, and arms of the executive”—to pass 

legislation. City of Moundridge, 471 F. Supp. 2d at 37 (quoting Cal. Motor Transp. Co. v.

Trucking Unlimited, 404 U.S. 508, 510 (1972)).

However, “[n]ot all conduct intended to influence the political process is immune” from 

antitrust liability, for the Noerr-Pennington doctrine’s scope “depends on ‘the source, context, 

and nature of the anticompetitive restraint at issue.’” Id. (quoting Allied Tube & Conduit Corp.

v. Indian Head, 486 U.S. 492, 499 (1988)). “[W]hen government action is the source of an 

alleged antitrust violation, the private party is immune because ‘the intervening government 

action breaks the causal chain.’” Id. (quoting Andrx Pharm., Inc. v. Biovail Corp. Int’l, 256 F.3d 

799, 818 (D.C. Cir. 2001)). But, under the “sham” exception of Noerr-Pennington, a private 

party may be held liable for antitrust violations if its lobbying activities are “actually nothing 

more than an attempt to interfere directly with the business relationships of a competitor.” Fed.

Prescription Serv., Inc. v. Am. Pharm. Ass’n, 663 F.2d 253, 261 (D.C. Cir. 1981) (quoting Noerr

Motor Freight, Inc., 365 U.S. at 144).

When attempting to influence a local government agency, neither a private party’s 

anticompetitive intent, nor its alleged “pattern of actions” designed to destroy a competitor is 

sufficient to satisfy the sham exception. Id. at 262. Instead, the plaintiff must allege that the 

private party “subverted the integrity of the governmental process, that [it] effectively barred [the 
27

plaintiff’s] access to [those] processes,” or that the nature of those processes caused the private 

party’s alleged persuasive efforts to fall outside the scope of “political activity”. Id. at 262–63.

Actions that fall outside the scope of “political activity” include attempts to “influence 

governmental action through overtly corrupt conduct, such as bribes,” unlawful meetings with 

government officials, or other forms of inducement that do not constitute legitimate lobbying.

Id. at 263, 266.

Plaintiffs allege that Mr. Schaeffer and his lobbyist, John Ray, took the following actions 

to secure the H-Tag regulation: (1) Mr. Schaeffer and Mr. Ray regularly met with DFHV; (2) 

Mr. Schaeffer informed DFHV of the potential threat that an open-licensing system would pose 

to his business; (3) Mr. Schaeffer collaborated with DFHV to adopt the H-Tag regulation; and 

(4) Mr. Schaeffer and Mr. Ray drafted the H-Tag regulation. Compl. ¶¶ 7, 74, 77, 79, 81. 

However, Plaintiffs do not allege that Mr. Schaeffer and Mr. Ray attempted to bribe DFHV, that 

they engaged in unlawful meetings with DFHV, that they induced DFHV in any manner beyond 

legitimate lobbying techniques, or that they prevented Plaintiffs from engaging in the H-Tag 

regulatory process. In other words, they fail to allege that the efforts of Mr. Schaeffer and Mr. 

Ray fell outside the scope of “political activity,” and therefore Plaintiffs fail to satisfy the “sham” 

exception to the Noerr Pennington doctrine. 20 Fed. Prescription Serv., Inc., 663 F.2d at 262, 

266. Thus, DFHV’s decision to implement the H-Tag regulation—a governmental action—

severs the causal chain between Mr. Schaeffer’s alleged influence and any anticompetitive 

 20 Plaintiffs also allege that they attempted to coordinate a meeting with DFHV’s

chairman after DFHV implemented the H-Tag regulation, but their efforts were hindered by two 

unnamed DFHV officials directed by Mr. Schaeffer. Compl. ¶¶ 7, 31. This allegation does not 

implicate the sham exception, because that exception covers foul play during the legislative or 

regulatory process, and the alleged interference occurred after the H-Tag regulation had already 

been promulgated. See Fed. Prescription Serv., Inc., 663 F.2d at 262.
28

effects. See City of Moundridge, 471 F. Supp. 2d at 37, 39. Accordingly, because Mr. 

Schaeffer’s efforts to influence the DFHV’s regulatory process that resulted in the H-Tag 

regulation are immunized by the Noerr-Pennington doctrine, the antitrust allegations against him

must be dismissed. 

V. CONCLUSION

For the foregoing reasons, it is hereby ORDERED that:

• DFHV’s motion to dismiss for failure to properly serve the complaint (ECF No. 15) is 

DENIED. 

• DFHV’s motion to dismiss for lack of subject-matter jurisdiction (ECF No. 18) is

DENIED.

• Defendants’ motions to dismiss for failure to state a claim for relief (ECF Nos. 9 and 18)

are GRANTED. 

An order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: August 21, 2018 RUDOLPH CONTRERAS

United States District Judge