Pheenix Ush LLC v. District Department of Transportation

• Court: District Court, District of Columbia
• Decided: April 24, 2025
• Docket: Civil Action No. 2025-0922
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PHEENIX USH LLC d/b/a SPIN,

Plaintiff, Case No. 25-cv-922 (JMC)

v.

DISTRICT DEPARTMENT OF TRANSPORTATION, et al.,

Defendants.

MEMORANDUM OPINION

Plaintiff Pheenix Ush LLC, doing business as “Spin,” moves for a preliminary injunction

to prevent Defendant District of Columbia Department of Transportation (DDOT) and five of its

officials (together, “Defendants”) from compelling Spin to remove its shared electric scooters and

e-bikes from D.C. public spaces. Absent a preliminary injunction, Spin must remove its devices in

short order because the DDOT denied it permits to continue offering them in the District. Spin

claims that the DDOT’s permit denial violated the company’s Fifth Amendment rights to due

process and equal protection and constituted arbitrary and capricious agency action under D.C.

law. The Court finds Spin unlikely to succeed on the merits of any of its claims and will therefore

DENY Spin’s motion for preliminary injunction. 1

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.

1 I. BACKGROUND

A. Statutory and Regulatory Framework

Under D.C. statutory law, companies seeking to offer “shared fleet devices” such as electric

scooters and electric bicycles (“SFDs”) must apply for a permit with the DDOT. D.C. Code § 50–

2201.03c(a). The statute authorizes the DDOT to set rules governing the application process, and

it allows the agency to grant permits either to no SFD operators or any number of SFD operators

greater than two. Id. §§ 50–2201.03c(b)(1), (b)(3).

Pursuant to that authority, the DDOT has promulgated rules for selection of SFD operators

in the District, as well as for the terms and requirements of such permits. See 24 D.C.M.R. §§ 3314,

3317. Those rules provide that the DDOT “may issue no more than nine (9) shared fleet device

permits, during a permit period, and may permit fewer if the Director determines that doing so

would be in the interest of protecting public safety, preventing negative transportation impacts, or

ensuring reasonable enjoyment of the public space.” Id. § 3314.24. Of those, no more than five

may be for “electric mobility devices” (i.e., scooters). Id; see ECF 1-2 at 2. Such permits each have

a term of 24 months. 24 D.C.M.R. § 3314.6. The previous set of SFD permits expired on December

31, 2024, and the current set of permits will expire on December 31, 2026. See id.; ECF 1-1 at 7;

24 D.C.M.R. §§ 3314.6.

The DDOT’s regulations require the agency to publicize the SFD application process and

release an accompanying “administrative issuance” that outlines a “points-based scoring system”

for evaluating applications along a set of enumerated criteria like “equity and affordability,”

“safety,” and “innovation.” 24 D.C.M.R. §§ 3317.1–4. For the 2025–2026 permit cycle, the DDOT

issued its administrative issuance in October 2024 outlining the following four-point scoring rubric

for each application question:

2 • 0 ratings fail to meet the criteria established in the regulations or offer solutions that may worsen or create additional challenges and/or limitations to fulfilling the respective criteria.

• 1 ratings meet the minimum regulatory standards and offer rudimentary solutions, claim[ing] the minimum level of commitment and ability to solving known challenges and concerns.

• 2 ratings meet the minimum regulatory standards and offer basic or typical, but unexceptional solutions, claiming a moderate level of commitment and ability to solving known challenges and concerns.

• 3 ratings significantly exceed the minimum requirements or display more detailed approaches demonstrating (with specific testing, demonstrations, or research and development) a higher level of commitment to solving known challenges and concerns.

• 4 ratings substantially exceed the minimum requirements, display unique or innovative approaches demonstrating (with specific case studies, past performance, or independently verifiable data) the highest level of commitment and ability to solving known challenges and concerns, and have been exhibited effectively in the District or other markets.

ECF 1-1 at 9. 2 An “Evaluation Committee” of at least two DDOT representatives scores the

applications pursuant to that point-based scoring system and the published criteria. Id. §§ 3317.5–

6. The administrative issuance also included question-by-question guidance on how applicants

should answer the various questions and what specific information they should provide. See

ECF 1-1 at 10–14.

The regulations also create an appeals process within the DDOT for applicants denied a

permit who “believe[] the Evaluation Committee incorrectly scored a permit application.”

24 D.C.M.R. § 3317.8. Such an appeal may be made on three bases:

1. That the DDOT “improperly or mistakenly applied the scored criteria to the appellant’s

original application”;

2 The administrative issuance provided a slightly different four-point rubric for questions regarding the applicant’s “Past Performance,” but that rubric is not at issue in this case. See ECF 1-1 at 9, 12–13.

3 2. That the DDOT “made a mistake in analyzing or calculating an applicant’s final score (or

a component thereof)”; and

3. That the DDOT “improperly deemed an application as incomplete.” Id. § 3317.9.

A Hearing Officer appointed by the DDOT Director reviews those appeals and issues a

final report recommending to the Director one of three courses of action:

1. “Dismiss[ing] the appeal in its entirety”;

2. “Recalculat[ing] appealed scores the Hearing Officer believes were scored in error”; or

3. “[R]emand[ing] the application to the review panel for scoring,” if the Hearing Officer

finds the applicant was improperly disqualified from the application process. Id.

§§ 3317.11–12.

The Director then makes a “final decision,” which is not further appealable within the DDOT. Id.

§ 3317.13.

The administrative issuance for the 2025–2026 permit cycle included a section called

“Important Dates” that included an “application deadline” of November 1, 2024, and a

“[m]andatory device demo day” of November 4, 2024. ECF 1-1 at 7. The DDOT also circulated a

“Permit Application Questions” document in late-October 2024. See ECF 1-2. One of the

questions asked whether the DDOT “[w]ould be willing to grant a deadline extension” so that

“operators [could] deliver more polished and targeted responses,” to which the agency responded

that “[a]n extension will not be granted at this time.” Id. at 3. Another question asked whether the

“demonstration on November 4” would be “scored as part of the application.” Id. at 5. The DDOT

responded that “[d]emonstrations will not impact the final score of the application, but applications

will be considered incomplete without a demonstration.” Id.

4 In addition, the administrative issuance indicated that permits would be “awarded” on

January 1, 2025. ECF 1-1 at 7. And it included a sample, “not final” Permit Operator Agreement

(POA) that it said each awardee would be required to sign, subject to “additional terms and

conditions” being added “based on [an awardee’s] application.” Id. at 6. The sample POA provided

for “immediate permit revocation” if the awardee did not “launch” its “permitted operations”

within 30 days of January 1, 2025, the permit start date, and required the awardee to “immediately

serve the entire District of Columbia upon the first day of permitted operations.” ECF 1-3 at 13.

DDOT regulations also spell out consequences for revocation of a SFD permit. If the

DDOT Director revokes an operator’s permit, the operator “shall remove its devices from public

space within seventy-two (72) hours.” 24 D.C.M.R. § 3318.6.

B. Factual Background 3

1. Spin’s Application

Spin applied for two SFD permits in the 2025–2026 application cycle: one for e-scooters

(referred to by the DDOT as Permit A) and one for e-bikes (Permit B). ECF 1 ¶ 63. Spin is an

incumbent provider, having received permits to offer both types of SFDs in the District since 2019.

Id. ¶ 15. In the 2023–2024 application process, Spin received the highest score of any applicant.

Id. ¶ 16. In the 2025–2026 process, however, Spin received only the third highest score for each

permit. Id. ¶ 66. On November 15, 2024, the DDOT notified Spin that it would not receive either

Permit A or Permit B for the 2025–2026 permit cycle. Id. ¶ 64. Instead, the DDOT had awarded

each permit to two other operators who received higher scores than Spin, including a company

called Bolt. Id. ¶ 40.

3 The Court draws these facts from Spin’s verified complaint, ECF 1, its motion for TRO or preliminary injunction, ECF 3, Defendants’ response, ECF 13, Spin’s sealed supplemental filing, ECF 15, and the attachments to those documents.

5 2. Bolt’s Application

Bolt, a non-U.S. company and first-time permit applicant in D.C., also applied for Permits

A and B in the 2025–2026 cycle. See id. On October 15, 2024, before the DDOT had published

the application details, a representative of Bolt emailed DDOT employees stating that Bolt

“understands that DDOT is seeking to demo the product the week of 11/4” and asking whether the

agency would be “willing to accommodate the week of 11/11” instead “given international

shipping and travel schedules.” ECF 13-1 at 5. A DDOT employee responded in the affirmative,

stating that the agency “can accommodate a live demo” during that week. Id. at 4–5. The agency

held Bolt’s live demo on November 12, 2024, id. at 1, whereas other applicants’ “[m]andatory

device demo day” was November 4, see ECF 1-1 at 7.

Ultimately, Bolt received a permit to operate e-scooters in D.C., under Permit A. The

DDOT also awarded a Permit A permit to another incumbent operator, and it awarded Permit Bs

to two incumbent operators. Apr. 11, 2025 Hr’g Tr. 66:9–12. In total, the DDOT awarded two

Permit A permits and two Permit B permits, making Spin the highest scoring non-awardee in both

categories. Id. Tr. 66:14–17. Spin later learned that the DDOT had granted Bolt an “additional

grace period” to launch operations “after January 1, 2025.” ECF 1 ¶ 44.

3. Spin’s Appeals

Spin submitted appeals of its two permit denials on the basis of “improper scoring.” ECF 1

¶ 67. After submission, Spin learned about the above-described “preferential treatment” of Bolt

during the application process (specifically, extension of the live demo date), as well as the

DDOT’s use of what Spin called a “secret scoring rubric” during the scoring process. Id. ¶ 68. As

proof of this secret rubric, Spin points to an email sent on November 5, 2025, from DDOT

micromobility coordinator Defendant Ted Randell to two other DDOT employees (Defendants

6 William Feeney and Aaron Goldbeck) with the subject line “Scoring Criteria.” ECF 1-5 at 2.

Randell and the two other employees were, together, the three “scoring committee members” who

reviewed and scored the SFD permit applications. ECF 1-8 at 5. In that email, Randell stated that

its purpose was to “open a thread here for questions or clarifications on scoring criteria.” ECF 1-5

at 2. The email then stated that the “current [scoring] rubric emphasizes meeting or exceeding

District Regulations, innovation, and performance.” Id. It went on to state the following about the

scoring system:

A score of ‘2’ will effectively be an “average” score, where the operator is restating a requirement or simply meeting the standards of the industry or offering examples of previous solutions or outcomes that are unexceptional. 3s and 4s should be given only when an operator can effectively exhibit “higher” or “highest” level of commitment and has some proof to back it up, rather than simply promising an outcome.

Id. Below that statement and three other bullet points with logistical instructions about the scoring

process (e.g., “Please consolidate scores on a single scoring sheet”), the email then recited verbatim

the “official” descriptions of the 4-point system publicized in the administrative issuance.

Compare id., with ECF 1-1 at 9. Randell’s email also included an attached spreadsheet called

“SFD Scoring rubric and questions Template” that the reviewers used to record their scores.

ECF 1-5 at 2. In each section of the spreadsheet, corresponding to each application question

category, the template restated the official descriptions of the scoring system from the

administrative issuance. See id. at 4–6.

On December 30, 2024, after learning of this so-called “secret” criteria and the

“preferential treatment” of Bolt during the application process, Spin sent a letter to the designated

DDOT Hearing Officer, Defendant Karen Calmeise, requesting an evidentiary hearing to address

“outstanding issues of material fact.” ECF 1 ¶ 69; ECF 1-6 at 2. These issues included the

“DDOT’s scoring criteria and its application of its scoring criteria to questions in Spin’s

7 Applications,” as well as the DDOT’s “preferential treatment to other applicants,” specifically

Bolt, and its “policy regarding exceptions and the panelists’ decision to not disclose” that

“preferential treatment.” ECF 1-6 at 2–3. Spin said such a hearing was “necessary for DDOT to

properly consider Spin’s appeal.” Id. at 3. Calmeise responded to Spin on February 20, 2025,

stating that she did not find a “formal ‘in-person’ hearing [to be] necessary” because “[t]he issues

for [her] determination [were] not dependent on credibility or [the] need to view witness

testimony.” ECF 1-7 at 2.

Meanwhile, on January 17, 2025, Spin submitted a second set of appeals detailing its full

range of objections to DDOT’s scoring of Spin’s application and its purported preferential

treatment of Bolt. ECF 1 ¶ 74; see ECF 15 (filed under seal). And on March 11, 2025, Calmeise

issued a report and recommendation denying each of the claims in Spin’s amended appeal.

ECF 1-8. First, as to use of a “secret” scoring criteria, Calmeise found that the language used in

Randell’s email to describe scores 2 and 3 “d[id] not significantly differ from the language

presented in the [administrative issuance]” and was “merely a restatement of the published score

criteria.” Id. at 6–7. Calmeise then reviewed Spin’s objections to the reviewers’ scores and found

that their scoring comments “complied with the published score criteria” and did not suggest use

of a contradictory “secret” criteria. Id. at 7–9. For instance, Calmeise acknowledged Spin’s

complaint that some reviewer comments referred to “industry standards,” a term found in

Randell’s email but not in the published criteria. Id. at 8–9. But she agreed with the DDOT that

“[t]he application of industry standards to the scoring criteria [was] not contradictory to the

published criteria” because “[a] scoring process that is ‘blind’ to the best practice of an industry

would not be in the best interest of the District.” Id. at 9. She further found that the “standards of

the industry” term in the Randell email was “virtually synonymous” with the published criteria’s

8 use of the term “minimum regulatory standards” and that the published criteria “require[d] the

applicant to highlight their accomplishments by showing that the operations will be better and/or

provide higher services than regulatory/industry standards.” Id. at 7.

As to Spin’s complaint of “preferential treatment” accorded to its competitor, Bolt,

Calmeise concluded that it fell outside her review authority under the applicable DDOT regulation,

24 D.C.M.R. § 3317.9, “because these concerns are not matters of miscalculation or mistake in the

score ratings” and “the grounds for review . . . do not extend to complaints of other applicants[’]

application process.” ECF 1-8 at 9. And after rejecting Spin’s remaining arguments as also outside

the scope of her review (including due process and equal protection challenges at issue in this

case), Calmeise recommended dismissal of Spin’s appeal in its entirety. Id. at 10. She issued nearly

identical recommendations as to Spin’s Permit A (scooters) appeal and Permit B (bikes) appeals.

Compare ECF 1-8 (Permit A appeal recommendation) with ECF 1-9 (Permit B appeal

recommendation).

On March 26, 2025, Defendant Sharon Kershbaum, Director of the DDOT, issued a

decision upholding Calmeise’s recommendations and confirming that permits would not be issued

to Spin for the 2025–2026 period. ECF 1-10 at 2. Kershbaum’s decision further stated that Spin

would be “welcome to apply in any future application periods.” Id. Finally, the decision stated that

the DDOT “now consider[ed] [Spin’s] shared fleet device permit in a state of revocation” and thus

that “all Spin devices must be removed from the public right of way within 72 hours of the date of

this letter” pursuant to 24 D.C.M.R. § 3318.6. Id.

The next day, the DDOT informed Spin that it would delay that 72-hour removal deadline

until April 6, 2025, “‘as long as Spin [was] demonstrating efforts to remove devices’ and

‘displaying downward deployment trends.’” ECF 1 ¶ 84 (quoting ECF 1-11 at 2).

9 4. This Suit

Spin challenged the DDOT’s permit denial decisions in a suit filed in this Court on

March 28, 2025. ECF 1. In a verified complaint, Spin challenged the denial as arbitrary and

capricious under D.C. law, as a violation of Spin’s procedural and substantive due process rights

under the Fifth Amendment, and as a violation of Fifth Amendment equal protection. Id. ¶¶ 87–

127. 4 That same day, Spin filed a motion for temporary restraining order and preliminary

injunction that would preserve the “status quo” by “allowing Spin to continue to operate [its SFDs]

as it has been for the past six years, while the merits of this case are resolved.” ECF 3 at 2. And it

asked that the Court grant a TRO or administrative stay by April 2 to give Spin time to withdraw

its scooters in advance of the agency’s April 6 removal deadline. Id.

The Court held a TRO hearing on April 1, 2025, with all Parties present. See Apr. 1, 2025

Min. Entry. There, the DDOT agreed to postpone the deadline for Spin to remove its SFDs from

D.C. public space until April 25, 2025, to allow the Parties to fully brief Spin’s motion for

preliminary injunction and the Court to decide it. Defendants filed their opposition to Spin’s

motion on April 8, 2025, ECF 13, and Spin replied on April 11, ECF 14. The Court held a hearing

on the motion on April 11, 2025. See Apr. 11, 2025 Min. Entry. Spin submitted a supplemental

sealed filing on April 14 that included Spin’s complete amended appeal that it had submitted to

the DDOT Hearing Officer, along with the DDOT’s response. ECF 15.

II. LEGAL STANDARD

“A preliminary injunction is ‘an extraordinary remedy that may only be awarded upon a

clear showing that the plaintiff is entitled to such relief.’” Sherley v. Sebelius, 644 F.3d 388, 392

(D.C. Cir. 2011) (quoting Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22 (2008)). To prevail

4 Spin also included a count for “Injunctive Relief” and another for “Declaratory Judgment,” which the Court construes as remedies sought rather than legal claims. See ECF 1 ¶¶ 128–47.

10 on a preliminary injunction motion, the movant “must show (1) a substantial likelihood of success

on the merits, (2) that it would suffer irreparable injury if the injunction were not granted, (3) that

an injunction would not substantially injure other interested parties, and (4) that the public interest

would be furthered by the injunction.” Chaplaincy of Full Gospel Churches v. England, 454 F.3d

290, 297 (D.C. Cir. 2006). However, “without a likelihood of success on the merits,” the movant

is “not entitled to a preliminary injunction regardless of their showing on the other factors.” Brown

v. Fed. Election Comm’n, 386 F. Supp. 3d 16, 24 (D.D.C. 2019) (citing Ark. Dairy Co-op Ass’n,

Inc. v. U.S. Dep’t of Agric., 573 F.3d 815, 832 (D.C. Cir. 2009)).

III. ANALYSIS

Spin fails to show that it is likely to succeed on the merits of any of its claims, a failure

fatal to its preliminary injunction motion. The Court assesses Spin’s due process, equal protection,

and D.C. administrative law claims and finds all of them wanting.

A. Due Process

Spin claims that the DDOT’s “handling and subsequent denial of Spin’s [permit]

application[s]” violated Spin’s substantive and procedural due process rights. ECF 3 at 25.

According to Spin, it was deprived of its liberty interest in “pursuing [its] chosen trade or

profession,” namely providing SFD services in the District—as well as its property interest in the

SFD permits—without a rational basis and without adequate procedures like an evidentiary

hearing. Id. at 25–27; ECF 14 at 15–17. Defendants counter that Spin has not shown a protected

interest and, even if it did, Spin was given sufficient process to challenge the DDOT’s denial

decisions.

The Court agrees with Defendants that Spin has not established the requisite protected

interest to trigger either substantive or procedural due process protections, and Spin’s claim fails

11 as a result. Substantive and procedural due process claims both demand a threshold showing that

the defendant “deprived [the plaintiff] of a constitutionally cognizable liberty or property interest.”

Doe v. District of Columbia, 206 F. Supp. 3d 583, 604 (D.D.C. 2016) (citing Washington v.

Glucksberg, 521 U.S. 702, 720–22 (1997); Roberts v. United States, 741 F.3d 152, 161 (D.C.

Cir. 2014)). Spin establishes neither.

Start with Spin’s asserted liberty interest. Spin contends that it has a liberty interest

equivalent to the recognized liberty interest in an individual or business “pursuing their chosen

trade or profession.” ECF 3 at 25–26. Spin points to cases holding that “formally debarring a

corporation from government contract bidding constitutes a deprivation of liberty that triggers the

procedural guarantees of the Due Process Clause.” Trifax Corp. v. District of Columbia, 314 F.3d

641, 643 (D.C. Cir. 2003). But the instant case is not equivalent to formal debarment. In the

contract debarment cases, a business is prohibited from bidding on or participating in a government

program, such as Medicare, often for an indefinite period. See ABA, Inc. v. District of Columbia,

40 F. Supp. 3d 153, 166–167 (D.D.C. 2014). Here, Spin merely lost a permit competition (in which

it was allowed to compete) for two specific two-year permits, and nothing prohibits it from entering

the competition again for the next permitting cycle. To the contrary, the DDOT Director stated in

her denial letter that Spin was “welcome to apply in any future application periods.” ECF 1-10

at 2.

To that fact, Spin responds that even a temporary debarment still counts as an infringement

of a protected liberty interest. Thus, that Spin lost a permit only for two years would still suffice.

ECF 14 at 16. But neither of the two cases Spin cites for that proposition conducted a constitutional

due process analysis or found a protected liberty interest. See Horne Bros., Inc. v. Laird, 463 F.2d

1268 (D.C. Cir. 1972); Friedler v. Gen. Servs. Admin., 271 F. Supp. 3d 40 (D.D.C. 2017). Instead,

12 both involved compliance with regulatory requirements associated with federal contract

debarment. Spin offers no other authority for its claim that merely losing a competition for a two-

year permit constitutes formal debarment.

D.C. Circuit precedent offers Spin another path, but Spin cannot navigate its way there,

either. The Circuit has held that “government action precluding a litigant from future employment

opportunities will infringe upon [its] constitutionally protected liberty interests only when that

preclusion is either sufficiently formal or sufficiently broad.” Taylor v. Resol. Tr. Corp., 56 F.3d

1497, 1506 (D.C. Cir.), amended on reh’g, 66 F.3d 1226 (D.C. Cir. 1995) (emphasis added). To

establish that its preclusion is broad enough, even if not formal enough, to trigger protection, Spin

must show that it has been “effectively foreclosed” from government contracting or employment

opportunities by virtue of defamatory statements that “effectively put [it] out of business.” Old

Dominion Dairy Prods., Inc. v. Sec’y of Def., 631 F.2d 953, 963–64 (D.C. Cir. 1980); see also

Trifax Corp., 314 F.3d at 644. In such cases, “when the Government effectively bars a contractor

from virtually all Government work due to charges that the contractor lacks honesty or integrity,

due process requires that the contractor be given notice of those charges as soon as possible and

some opportunity to respond to the charges before adverse action is taken.” Trifax Corp, 314 F.3d

at 644 (quoting Old Dominion, 631 F.2d at 955–56); see also Reeve Aleutian Airways, Inc. v.

United States, 982 F.2d 594 (D.C. Cir. 1993), as amended on denial of reh’g (Mar. 26, 1993).

But that circumstance does not apply here, either. At no point in the permit application

process, appeal, or denial did Defendants publicly charge Spin with lacking honesty or integrity,

nor did they make other affirmative statements that would harm Spin’s reputation. Instead, the

DDOT merely gave Spin the third highest score out of eight in the permit competition, which was

13 not enough to win.5 See ECF 1-8 at 3 (Hearing Officer finding that Spin received the third highest

score in a “competitive” process).

Indeed, the caselaw makes clear that being denied a permit in a competitive bidding process

is not the same as debarment from government contracting. In the federal context, from which the

caselaw on debarment generally arises, debarment is defined as “‘an administrative action which

excludes nonresponsible contractors from government contracting’ and ‘effectuate[s] the [federal

government’s] policy that agencies shall solicit offers from, award contracts to, and consent to

subcontracts with responsible contractors only.’” Friedler, 271 F. Supp. 3d 40 at 43 (quoting

Caiola v. Carroll, 851 F.2d 395, 397, 398 (D.C. Cir. 1988)). But Spin has not been excluded from

government contracting; to the contrary, it was allowed to bid for a contract of a sort (a permit),

lost, and will be allowed to bid again in the next cycle. It has not been found ineligible for future

permits, nor has it been found to be “nonresponsible.” Id.

Finally, Spin attempts to rely on cases involving individuals denied licenses to practice

their profession. But first, none of the cases Spin cites involve a corporation; all involve individuals

seeking, and being precluded from, individual employment. See, e.g., Greene v. McElroy, 360 U.S.

474 (1959); Kartseva v. Dep’t of State, 37 F.3d 1524 (D.C. Cir. 1994). The D.C. Circuit has applied

that same basic principle to the context of corporations through its contract debarment cases. See

Trifax, 314 F.3d at 643. And, as discussed above, this case does not meet the debarment cases’

requirements. Without a case on point that finds a liberty interest in an international corporation’s

winning of a two-year permit to operate within a single city, this Court cannot find a likelihood of

5 To be sure, Spin does allege reputational harm flowing from Defendants’ decision: that Spin will lose customer goodwill when customers can no longer find Spin devices on D.C. streets. ECF 3 at 29. But Spin characterizes that harm as part of its irreparable injury, not as a harm supporting a protected interest for due process purposes. And indeed, Spin cites no case finding a protected liberty interest where the requisite reputational harm came not from a statement of the government but instead as a follow-on consequence of the government’s non-defamatory contract or license denial.

14 success on the merits of Spin’s liberty-interest claim at this point. Spin’s argument would

effectively subject every competitive municipal business-permit process to constitutional scrutiny,

and Spin offers no binding authority for such a sweeping rule.

Changing tack, Spin argues for the first time in its reply that it also has a protected property

interest in the permit it lost to its competitors through the challenged DDOT process. ECF 14

at 16–17. For support, Spin cites the D.C. Circuit’s rule outlined in 3883 Connecticut LLC v.

District of Columbia, 336 F.3d 1068 (D.C. Cir. 2003), as well as a D.C. Superior Court case

applying that rule. See Bird Rides, Inc. v. D.C. Dept. of Transp., No. 2023-CAB-00316, at 9-10

(D.C. Super. Ct. Sept. 20, 2023). Spin contends that, under those cases, it has a protected property

interest in the 2025–2026 permits because (a) it submitted its permit application and was denied

the renewed permits before its prior permits expired, as in Bird Rides, and (b) Spin’s application

answers for this cycle were “just as good if not better than those from the last application cycle,”

the number of permits the DDOT granted was the same as last cycle, and thus Spin had more than

a “unilateral expectation” that it would get another permit. ECF 14 at 17.

But those facts do not suffice to create a property interest under 3883 Connecticut. This

case concerns Spin’s eligibility for a new permit. To determine whether an applicant has a

protected property interest in a new permit, the D.C. Circuit asks whether the applicant had “more

than a unilateral expectation in the permit it seeks” based on decision-making officials’ “discretion

to approve [the] application” under the applicable laws and regulations. 3883 Conn., 336 F.3d

at 1072. As the Fourth Circuit has held, in a case cited approvingly by the D.C. Circuit, “[a]ny

significant discretion conferred upon the local agency” in granting the permit “defeats the claim

of a property interest.” Gardner v. City of Balt. Mayor & City Council, 969 F.2d 63, 68 (4th

Cir. 1992) (cited in 3883 Conn., 336 F.3d at 1072). Here, the D.C. statute and regulations give the

15 DDOT discretion to pick new permit holders based on its assessment of each applicant’s

performance on a set of criteria. See 24 D.C.M.R. §§ 3317.2–6. Those regulations do not require

the agency to grant a permit or renew a previously held permit, nor do they create mandatory or

automatic conditions for renewal. See id. In fact, by setting a cap on the number of permits selected,

the statute and regulations contemplate that not every applicant will receive a permit. See D.C.

Code § 50–2201.03c(b)(3) (granting the DDOT the authority to grant either no shared fleet device

permits or any number of permits greater than two); 24 D.C.M.R. § 3314.24 (allowing the issuance

of no more than nine permits for shared fleet devices, including no more than five for electric

mobility devices, and allowing selection of fewer than that “if the Director determines that doing

so would be in the interest of protecting public safety, preventing negative transportation impacts,

or ensuring reasonable enjoyment of the public space”). That regulatory context defeats a property

interest claim under D.C. Circuit caselaw. See also Lopez v. Fed. Aviation Admin., 318 F.3d 242,

249 (D.C. Cir. 2003), as amended (Feb. 11, 2003).

Nonetheless, Spin points to Bird Rides for the proposition that it had a property interest in

renewal of its SFD permits because it applied for the 2025–2026 permits while its 2023–2024

permits were still active. See Bird Rides, No. 2023-CAB-00316 at 9. The Superior Court’s opinion

does support that proposition, and it concerned precisely the same regulatory context as this case

(albeit for the previous application cycle). But this Court respectfully departs from the Superior

Court judge’s holding. That court reasoned from an opinion of another judge in this District,

Psychas v. District Department of Transportation, which held that a permit applicant did not have

a protected property interest in a permit that had already expired. No. 18-cv-0081, 2019 WL

4644503 (D.D.C. Sept. 24, 2019). In Psychas, the plaintiffs claimed that they had a protected

property interest in a DDOT building permit granted on November 9, 2015, and disputed the

16 contention that the permit had an expiration date or was temporary even though by its terms it had

“effective dates of November 9 through November 20, 2015.” Id. at *2, *12. Instead, those

plaintiffs argued, their permit had been “constructively revoked” without due process. Id. at *11.

Judge Berman Jackson disagreed on the facts, finding that the November 2015 permit’s stated

expiration date was indeed an expiration date, and that the plaintiffs therefore did not have an

ongoing property interest in that permit after that date. Id. at *11–12. In so holding, Judge Berman

Jackson compared those facts with the facts of 3833 Connecticut, which found a protected property

interest in an “active” (i.e., not-expired) permit. Id. at *12. The Bird Rides court reasoned from

that analysis that an SFD permit holder had a protected property interest in continued operations

of its SFDs in the District because it applied for new permits while its prior permits were still

active. Bird Rides, No. 2023-CAB-00316 at 10.

Despite some argumentative gymnastics on Spin’s part, this Court finds no property

interest here. Spin contends that it, like the plaintiff in 3883 Connecticut, had a protected property

interest in an active permit—namely, the 2023–2024 SFD permits it had previously been awarded,

which had not yet expired by the time Spin applied for the 2025–2026 permits. ECF 14 at 17. But

3883 Connecticut held only that such a permit holder has a protected interest in the “continued

effect” of the permit it already holds, and only to the extent that the granting official lacks

“discretion to revoke or suspend the permit.” 336 F.3d at 1072. If, and only if, the relevant laws

and regulations create “an expectation in the continued effect of the permit[]” due to officials’ lack

of discretion to revoke it, then the holder has a property interest in it. Id. at 1073. Spin’s problem

is that it cannot explain how it could have an expectation in the continued effect of permits that,

by the governing regulations’ clear terms, expired at the end of 2024. See 24 D.C.M.R. 3314.6(b).

Even though Spin purports to claim a protected interest only in the 2023–2024 permits that it was

17 already awarded, ECF 14 at 16, its argument functionally seeks a protected interest in the 2025–

2026 permits—the only thing Spin claims Defendants denied it. In 3883 Connecticut and Psychas,

by contrast, the plaintiffs claimed (in one case correctly and in the other incorrectly) that their

previously awarded permits had ongoing effect of which the government deprived them. Here, the

governing statutes and regulations plainly disabled the effect of the 2023–2024 SFD permits after

the end of 2024. After that point, all Spin had were expired permits and a denied application for

new permits. Neither affords it a property interest.

Spin advances one final argument, to no avail. Spin contends that it had more than a

“unilateral expectation” in winning a permit to operate after the end of 2024 because its responses

in the 2025–2026 application cycle were “just as good if not better than” its 2023–2024 responses.

ECF 14 at 17. Yet, Spin points to nothing in the permit statute or regulations, or DDOT guidance

or communications, suggesting that a permit would be awarded as long as the responses were at

least as good as before. To the contrary, the regulations provide that applications “shall be scored

by an Evaluation Committee” every two-year cycle based on a scoring system issued “in advance

of the permit application” for each process, and it clearly envisions a competitive process in which

prior permit holders and new applicants compete under the same rubric and not all will get a permit.

24 D.C.M.R. 3317.4–5. Spin provides no binding, or even persuasive, caselaw finding a protected

property interest on such facts, and the reasoning of 3883 Connecticut and the cases it cites

precludes such a finding.

In short, Spin is unlikely to succeed on the merits of its due process claim because it has

no protected liberty or property interest in the permits that Defendants denied it.

18 B. Equal Protection

Next, Spin brings an equal protection claim on the basis that one of its competitors, Bolt,

received preferential treatment in the permit application process and was awarded a permit over

Spin as a result. ECF 3 at 28–29. According to Spin, that preferential treatment took two forms.

First, it claims, the DDOT unfairly granted Bolt an exception to what Spin says was a mandatory

deadline for an in-person demonstration for which the DDOT said it would offer no extensions.

Id. at 28. And second, Spin alleges, the agency granted Bolt an extension from the requirement to

commence operations in the District on January 1, 2025, the permit start date. Id. According to

Spin, the DDOT offered Spin neither of those accommodations and thereby treated Bolt more

favorably—and did so without any rational basis. The Court finds that claim, too, unlikely to

succeed.

To establish an equal protection violation for a “class of one,” a plaintiff must show “(1)

disparate treatment of similarly situated parties (2) on no rational basis.” 3883 Conn., 336 F.3d at

1075 (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)). Spin’s claim likely fails at

the first prong. As Defendants argue, Spin and Bolt were not similarly situated in the relevant sense

such that any difference in treatment raises an equal protection issue.

With regard to extension of the in-person demonstration date, Defendants note that only

Bolt requested an extension of that date; Spin never requested such an extension. ECF 13 at 12;

see ECF 13-1 at 5. Indeed, as Defendants point out, Bolt requested an extension even before the

DDOT had announced a date. See id. Spin insists that it did not request an extension because the

application Q&A that the DDOT released in late-October 2024 stated that such extensions would

not be granted. ECF 3 at 12. Yet, as Defendants argue, that question in the Q&A document is best

read to reference the deadline for the written application (referring to applicants’ desires to provide

19 “polished and targeted responses”), see ECF 1-2 at 3, 5, not the demonstration, which is discussed

in a different Q&A and which post-dated the November 1 “[p]ermit application deadline.” ECF 1-

1 at 7. Thus, there is no evidence in the Q&A that Spin or other applications could not have

requested a different demo date, as Bolt did. Further, even if the Q&A could be read to generally

preclude extensions, the record evinces a facially legitimate reason for giving Bolt an extension

upon request: the “international shipping and travel schedules” that Bolt raised in its request email.

ECF 13 at 2 (quoting ECF 13-1 at 5). Spin does not contest the truth of that reason, nor does it

offer more than a speculative suggestion that the reason was pretextual. See Apr. 11, 2025 Hr’g

Rough Tr. 20:23–21:12 (suggesting, admittedly without “sufficient evidence,” that the DDOT

denied Spin a permit in order to effectuate an ulterior motive of reducing the total number of

scooters on D.C. streets, which the DDOT allegedly considered but failed to do through a

rulemaking process and thus “had to find another way to make that happen”).

The January 1, 2025, launch deadline, which appears in the sample Permit Operator

Agreement (POA) attached to the administrative issuance, is even less helpful to Spin. For one

thing, Spin was not similarly situated to Bolt at that stage because it never even made it to the point

of signing a POA for the 2025–2026 cycle. Thus, we do not know if Spin would have received an

extension to the launch date if, for whatever reason, it asked for one. That fact alone dooms Spin’s

claim on this point. Even worse for Spin, the administrative issuance made clear that the sample

POA was “not final” and “applicants may have additional terms and conditions written into their

POA based on their application.” ECF 1-1 at 6. Thus, the sample POA erected no barrier to the

DDOT extending Bolt’s January 1 launch date, as the DDOT could simply add a term or condition

to Bolt’s final POA providing for such an extension. Finally, though it does not much matter, even

the sample POA did not require a launch on January 1; it required a launch within 30 days of

20 January 1. See ECF 1-3 at 13 (providing for “immediate permit revocation” if the awardee did not

“launch” its “permitted operations” within 30 days of January 1, 2025, the permit start date, and

required the awardee to “immediately serve the entire District of Columbia upon the first day of

permitted operations”). And all the record in this case indicates is that, according to Spin, Bolt had

not launched operations as of January 17. ECF 1 ¶¶ 46, 74. Accordingly, the alleged extension

appears perfectly consistent with the agency’s guidance and not an exception at all.

Spin’s equal protection argument therefore stalls out.

C. D.C. Administrative Law

Spin’s final claim asserts that Spin’s permit denial decision was arbitrary and capricious in

violation of D.C. administrative law. ECF 3 at 10–25. Because the Court finds Spin unlikely to

succeed on the merits of its federal claims, the Court must first determine whether it is likely to

exercise supplemental jurisdiction over that claim. Obama v. Klayman, 800 F.3d 559, 565 (D.C.

Cir. 2015) (explaining that, in the preliminary injunction context, likelihood of success on the

merits includes “a likelihood of . . . establishment of jurisdiction”). The Court would likely not

exercise such jurisdiction. But even if it did, Spin’s D.C.-law claim would likely fail. Either way,

preliminary injunctive relief on this claim is not warranted.

1. The Court will likely decline to exercise supplemental jurisdiction

A federal court may exercise subject matter jurisdiction over state-law (including D.C.-

law) claims that “derive from” the same “common nucleus of operative fact” as any federal claims

such that “the relationship between the federal claim and the state claim permits the conclusion

that the entire action before the court comprises but one constitutional case.” City of Chicago v.

Int’l Coll. of Surgeons, 522 U.S. 156, 165 (1997) (quoting Mine Workers v. Gibbs, 383 U.S. 715,

725 (1966)); see 28 U.S.C. § 1367(a). That decision lies within the district court’s discretion, and

21 the court “may decline to exercise supplemental jurisdiction over [such] a claim” if, inter alia, the

court “has dismissed all claims over which it has original jurisdiction.” Id. § 1367(c)(3); see

Edmondson & Gallagher v. Alban Towers Tenants Ass’n, 48 F.3d 1260, 1266 (D.C. Cir. 1995). In

exercising its discretion, district courts should weigh “considerations of judicial economy,

convenience and fairness to litigants.” Gibbs, 383 U.S. at 726. As the Supreme Court has

explained, “[n]eedless decisions of state law should be avoided both as a matter of comity and to

promote justice between the parties, by procuring for them a surer-footed reading of applicable

law.” Id.

When it comes to D.C. administrative law claims, courts in this Circuit have expressed a

strong preference—if not a firm rule—against district courts’ exercise of supplemental jurisdiction

once all federal claims have been dismissed. See Lightfoot v. D.C., 448 F.3d 392, 399 (D.C. Cir.

2006) (instructing that the district court “should dismiss” a claim brought under the D.C.

Administrative Procedure Act (DCAPA) if “there are no longer any viable federal claims in this

suit,” and calling a federal court reviewing a D.C. agency an “anomaly”); Robinson v. Palmer, 841

F.2d 1151, 1157 (D.C. Cir. 1988) (holding that DCAPA suits without federal claims are “more

properly decided in the first instance by the local courts of the District of Columbia”). Applying

that Circuit precedent, another judge in this District denied a preliminary injunction on a DCAPA

claim because the plaintiff was unlikely to succeed on the merits of its federal claims and the court

would thus likely dismiss the DCAPA claim for lack of supplemental jurisdiction. See Classic

Cab, Inc. v. D.C., 288 F. Supp. 3d 218, 229–30 (D.D.C. 2018). Those cases counsel against

supplemental jurisdiction here, too.

Spin pushes back, arguing that its D.C.-law claims does not arise under the DCAPA and

thus that the aforementioned cases do not apply. ECF 14 at 9–10. Instead, Spin maintains, the

22 DCAPA “governs only ‘contested’ administrative cases,” which this case is not. Id. at 9. To be

sure, the DCAPA’s judicial review provision applies by its terms only to “order[s] or decision[s]

of the Mayor or an agency in a contested case.” D.C. Code § 2–510(a). That provision confers

exclusive jurisdiction for such suits on the D.C. Court of Appeals. See id.; D.C., Dep’t of Pub.

Works v. L.G. Indus., Inc., 758 A.2d 950, 954 (D.C. 2000). And the Parties here agree that the

challenged DDOT decision was not conducted as a contested case under the DCAPA. ECF 13

at 13; ECF 14 at 9; see D.C. Code § 2–502(8) (defining a “contested case” as “a proceeding before

the Mayor or any agency in which the legal rights, duties, or privileges of specific parties are

required by any law (other than this subchapter), or by constitutional right, to be determined after

a hearing before the Mayor or before an agency); id. § 2–509 (prescribing procedures for contested

cases). The Court agrees with Spin that, to the extent the caselaw in this Circuit concerns only

contested cases, it would not apply here.

However, the caselaw does not appear so limited. Neither the Lightfoot nor Robinson courts

stated that they were reviewing contested cases or that their supplemental jurisdiction holdings

relied on such a finding. Rather, in both cases, the DCAPA challenge concerned the District

agency’s failure to use notice-and-comment procedures for a rulemaking as required under the

DCAPA. Lightfoot, 448 F.3d at 398; Robinson, 841 F.2d at 1157. A rulemaking is not a contested

case, and a challenge to it thus does not fall under the DCAPA’s judicial review provision. See

Debruhl v. D.C. Hackers’ License Appeal Bd., 384 A.2d 421, 425 (D.C. 1978) (distinguishing

contested cases from rulemakings under the APA); United States v. D.C. Bd. of Zoning Adjustment,

644 A.2d 995, 999 (D.C. 1994) (holding that rulemakings or other agency actions that do not have

“contested case status” are “not the proper subject of [the D.C. Court of Appeals’] direct appellate

jurisdiction”). Consistent with that reading, the district court in Classic Cab applied Lightfoot and

23 Robinson in finding jurisdiction unlikely over a challenge to a District agency rulemaking—also

not a contested case. See Classic Cab, Inc., 288 F. Supp. 3d at 229–30. Thus, this Court doubts

Spin’s argument that its challenge to the DDOT’s non-contested-case administrative action does

not “arise under” the DCAPA in the sense relevant for the Robinson-Lightfoot supplemental

jurisdiction rule.

But the Court need not spin its wheels further on this slick terrain. That is because, even if

the D.C. Circuit’s cases did not compel this Court to deny supplemental jurisdiction, the Supreme

Court’s instructions in Gibbs counsel in that same direction. First and foremost, the Gibbs Court

said that district courts “should” dismiss state claims “if the federal claims are dismissed before

trial,” as is likely here. 383 U.S. at 726. Second, federal courts should dismiss claims when “it

appears that the state issues substantially predominate.” Id. There is no question that the D.C. law

claims make up the bulk of the Parties’ briefing here. Third, D.C. local courts are more experienced

with D.C. administrative agencies and administrative law, and so there is at least some judicial

efficiency in having D.C. courts hear cases challenging D.C. administrative action.

All told, then, the Court is unlikely to exercise supplemental jurisdiction over Spin’s D.C.-

law claims. However, to the extent that further litigation and consideration could change the

Court’s assessment of its supplemental jurisdiction, the Court finds it prudent at this posture to

preliminarily assess the merits of Spin’s D.C.-law claim. And indeed, the Court sees some clear

judicial efficiency in addressing Spin’s merits claims in full for preliminary injunction purposes

given the time pressures Spin is under to clear its vehicles from D.C. streets.

2. Spin’s D.C.-law claim is unlikely to succeed in any event

If the Court did exercise supplemental jurisdiction over Spin’s D.C.-law claim, the claim

would still be unlikely to succeed on its merits. D.C. courts apply the same standard as applied in

the context of the federal Administrative Procedure Act when assessing whether a D.C. 24 administrative agency’s action is arbitrary and capricious, as Spin claims Defendants’ actions

were. See Wilson v. D.C. Rental Hous. Comm’n, 159 A.3d 1211, 1214 (D.C. 2017) (citing Motor

Vehicle Mfrs. Ass’n v State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). Thus, D.C. agency

action is arbitrary and capricious “if the agency has relied on factors which [the legislature] has

not intended it to consider, entirely failed to consider an important aspect of the problem, offered

an explanation for its decision that runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in view or the product of agency expertise.”

Id. (quoting State Farm, 463 U.S. at 43).

Spin argues that Defendants’ denial of the 2025–2026 SFD permits to Spin was arbitrary

and capricious for five reasons. See ECF 3 at 11. The Court takes each in turn.

i. Preferential Treatment of Bolt

An agency acts arbitrarily and capriciously when it “fails to ‘treat similar cases in a similar

manner unless it can provide a legitimate reason for failing to do so.’” XP Vehicles, Inc. v. Dep’t

of Energy, 118 F. Supp. 3d 38, 78–79 (D.D.C. 2015) (quoting Indep. Petroleum Ass’n of Am. v.

Babbitt, 92 F.3d 1248, 1258 (D.C. Cir. 1996)). Spin effectively repeats its equal-protection

arguments here, pointing again to the in-person demonstration date and launch date extensions.

ECF 3 at 12–13. Yet, as already explained, Spin and Bolt were not similarly situated for equal-

protection purposes. See supra Section III.B. And for the same reasons, they did not present

“similar cases” for arbitrary-and-capricious purposes. Thus, Spin’s D.C.-law claim is unlikely to

succeed on this basis.

ii. “Secret” Scoring Criteria

Next, Spin claims that the DDOT reviewers improperly applied the “secret” scoring criteria

articulated in Randell’s email to the other reviewers instead of the official scoring criteria

25 published in the agency’s administrative issuance. ECF 3 at 14–19. If the reviewers had in fact

applied a different scoring criteria than what the agency publicized, their decision very well could

have been arbitrary and capricious. “It is ‘axiomatic’ . . . ‘that an agency is bound by its own

regulations,” and “an agency action may be set aside as arbitrary and capricious if the agency fails

to ‘comply with its own regulations.’” Nat’l Env’t Dev. Assoc.’s Clean Air Project v. EPA., 752

F.3d 999, 1009 (D.C. Cir. 2014) (quoting Panhandle Eastern Pipe Line Co. v. FERC, 613 F.2d

1120, 1135 (D.C. Cir. 1979); Environmentel, LLC v. FCC, 661 F.3d 80, 85 (D.C. Cir. 2011)). Here,

DDOT regulations require the agency to include its “points-based scoring system . . . in an

administrative issuance released in advance of the permit application being published.” 24

D.C.M.R. § 3317.4. The agency was therefore bound by regulation to apply the scoring system it

released in its October 2024 administrative issuance. See ECF 1-1 at 9.

Yet Spin’s claim falls short because Spin has not met its burden to show that the DDOT

failed to apply its published scoring criteria. As the Hearing Officer found, the “secret” criteria in

Randell’s email did not meaningfully differ from the published criteria for a score of “2” or “3,”

as Spin claims. See ECF 1-8 at 6–7. Further, to the extent they differed in minor respects, the

record does not show that the reviewers applied the “secret” criteria rather than the published

criteria.

First take the criterion for a “2” score. Under the published scoring system in the

administrative issuance, “2 ratings meet the minimum regulatory standards and offer basic or

typical, but unexceptional solutions, claiming a moderate level of commitment and ability to

solving known challenges and concerns.” ECF 1-1 at 9. By comparison, Randell’s email stated

that “[a] score of ‘2’ will effectively be an ‘average’ score, where the operator is restating a

requirement or simply meeting the standards of the industry or offering examples of previous

26 solutions or outcomes that are unexceptional.” ECF 1-5 at 2. Spin zeroes in on the term “standards

of the industry,” arguing that Randell’s version “replace[d] ‘minimum regulatory requirements’

with ‘industry standards,’” thereby introducing a concept that, unlike minimum regulatory

requirements, are not defined in the D.C. Code or administrative issuance and, in any event, differ

from the published criterion’s standard. ECF 3 at 18.

But widen the aperture just a bit further, and it becomes difficult to see Randell’s version

as doing anything of the sort. The published criterion inquires into not just compliance with

“minimum regulatory standards” but also whether the applicant’s response “offer[s] basic or

typical, but unexceptional solutions,” and the extent to which it demonstrates a “commitment and

ability to solve known challenges and concerns.” ECF 1-1 at 9. It seems highly reasonable to

consider “industry standards” when judging whether proposed solutions are “basic,” “typical,” or

“unexceptional,” and the extent to which they “solve known challenges and concerns.” Id. The

DDOT argued as much to the Hearing Officer, and the Hearing Officer agreed. See ECF 1-8 at 9.

So, too, does the Court. What’s more, Randell’s email did not abandon the “regulatory

requirements” concept; to the contrary, it clearly stated that “[t]he current rubric emphasizes

meeting or exceeding District Regulations.” ECF 1-5 at 2. Notably, all five of the scoring criteria

(for scores of 0 through 4) referenced “minimum regulatory standards,” “minimum requirements,”

or “the regulations,” and a score of “1” also included the criterion that the response “meet[s] the

minimum regulatory standards,” just as the “2” score did. See ECF 1-1 at 9. So it makes perfect

sense that Randell’s email would emphasize what made the “2” score different from the others.

Accordingly, Randell’s criterion for a “2” score is perfectly consistent with the published version,

and his email does nothing more than what it purports to do: offer “clarifications on scoring

criteria.” ECF 1-5 at 2. And further, the reviewers’ use of the term “industry standards” in their

27 scoring comments therefore do not indicate any meaningful departure from the published criteria.

Contra ECF 3 at 19 (pointing to reviewers’ comments specifically referencing the “industry

standard” as proof that the reviewers applied the wrong criterion).

Next take the dueling criteria for a “3” score, the other one Spin challenges. The published

version states that “3 ratings significantly exceed the minimum requirements or display more

detailed approaches demonstrating (with specific testing, demonstrations, or research and

development) a higher level of commitment to solving known challenges and concerns.” ECF 1-1

at 9. Randell’s email said that “3s and 4s should be given only when an operator can effectively

exhibit ‘higher’ or ‘highest’ level of commitment and has some proof to back it up, rather than

simply promising an outcome.” ECF 1-5 at 2. There, unlike for the “2” score, the Court can discern

some potentially meaningful variation: Randell’s version appeared to discard the possibility of

earning a “3” through a response that “significantly exceed[s] the minimum requirements,” and it

instead allowed a “3” score “only when an operator can effectively exhibit ‘higher’ . . . level of

commitment and has some proof to back it up.” Id. (emphasis added); see ECF 3 at 18.

Yet, ultimately, this difference appears inconsequential. First, again, Randell’s email stated

early on that the scoring rubric as a whole “emphasizes meeting or exceeding District

Regulations.” ECF 1-5 at 2. So the reviewers were hardly instructed to “disregard[]” that aspect of

the published criteria. ECF 3 at 19. Second, Spin points to no evidence, nor can the Court locate

any in the record, that reviewers demanded “a higher level of commitment and certain proof,” as

Spin puts it, rather than merely applying the published criterion. Id. at 18. When pressed at oral

argument, Spin offered just one example of an application question in which reviewers’ comments

purportedly indicated that they improperly demanded “proof to back . . . up” a claim rather than

permitting a response that “significantly exceed[ed] minimum requirements.” See Apr. 11, 2025

28 Hr’g Rough Tr. 14:18–15:4. However, upon review, the Court cannot discern in the reviewers’

comments, filed under seal, a requirement of “a higher level of commitment and certain proof,” as

Spin’s argument would have it. ECF 3 at 18. Instead, the comments show merely that two

requesters gave a “2” score on that question because they found Spin’s response lacking in detail.

Requiring a more detailed response is not the same as requiring “proof” such as “specific testing,

demonstrations, or research and development,” as the published criterion states. ECF 1-1 at 9.

Because those comments—which Spin held out as its best example on the “3” score criteria—are

consistent with the published scoring criteria, Spin’s claim that the reviewers applied the wrong

criteria once again falls flat.

The record also includes other evidence that cuts against Spin’s argument that the reviewers

failed to apply the published criteria. For one thing, Randell’s email included the verbatim

published criteria right below his “clarifications.” See ECF 1-5 at 2. For another, the scoring

spreadsheets into which the reviewers inputted their scores included the verbatim published criteria

next to each category of questions. See ECF 1-5 at 4–6; see generally ECF 15 (filed under seal).

Additionally, the DDOT gave even more guidance in the administrative issuance in which it also

published the scoring rubric, including tips for how to answer many of the specific questions on

the application. See ECF 1-1 at 10–14. Spin provides no evidence that the agency disregarded that

additional guidance or scored answers inconsistently with it. All told, then, the record simply

cannot support Spin’s claim that Defendants applied “secret” or improper scoring criteria when

scoring Spin’s application, and its D.C.-law claim likely fails on that basis, too.

iii. Arguments Heard by Hearing Officer

Spin’s third D.C.-law argument against Defendants’ denial decision asserts that the

Hearing Officer that heard Spin’s agency appeal “ignore[d]” some of Spin’s arguments,

29 specifically those regarding the “DDOT’s preferential treatment of Bolt” through extension of two

deadlines. ECF 3 at 20–21. Hearing Officer Calmeise refused to consider those arguments as part

of her review of the DDOT denial decision because she found them to be outside of her authority

under the relevant regulation. See ECF 1-9 at 9 (citing 24 D.C.M.R. § 3317.9). According to Spin,

that decision was “plainly erroneous or inconsistent with the regulation” and therefore arbitrary

and capricious. ECF 3 at 19 (quoting St. Vincent’s Medical Center v. Burwell, 222 F. Supp. 3d 17,

22 n.2 (D.D.C. 2016)).

Not so. 24 D.C.M.R. § 3317.9, the regulation governing a Hearing Officer’s review,

permits an appeal to a Hearing Officer only on the following three bases: that the agency (a)

“improperly or mistakenly applied the scored criteria to the appellant’s original application”; (b)

“made a mistake in analyzing or calculating an applicant’s final score (or a component thereof)”;

or (c) “improperly deemed an application as incomplete.” Spin is correct that, while item (a)

applies only to the appellant’s scores, item (b) can extend to review of another applicant’s

application. ECF 3 at 20. But (b), the item upon which Spin hangs its argument, concerns only

“mistake[s]” in the analysis or calculation of an applicant’s scores. As Calmeise explained in her

opinion, the issue of preferential treatment or “bias” in favor of another applicant was not a

“matter[] of miscalculation or mistake in the score ratings which are the sole issue to be reviewed

in this Appeal process,” and “the grounds for review for this Appeal do not extend to complaints

of other applicants[’] application process.” ECF 1-9 at 9. Or, as Defendants put it at oral argument,

the review provision Spin cites authorizes reviewing any applicant’s scores, but not other aspects

of their application process or whether they were scored at all, which is what Spin requested. Apr.

30 11, 2025 Hr’g Rough Tr. 55:24–56:9. 6 That distinction accords with the wording of the regulation,

which encompasses mistakes made “in” calculating or analyzing a score, not mistakes made “by”

calculating or analyzing (i.e., the mistake of advancing an applicant to the scoring phase altogether,

which was Spin’s complaint). Id.; 24 D.C.M.R. § 3317.9. And, consistent with all that, the agency

explicitly stated in its Q&A document that the in-person demonstration (the component of the

application process in which Bolt allegedly got preferential treatment) “will not impact the final

score of the application.” ECF 1-2 at 5.

Calmeise therefore did not err in disregarding Spin’s preferential-treatment arguments in

her review.

iv. Ignoring Evidence of Improper Scoring

Spin challenges another aspect of Calmeise’s review, too. According to Spin, Calmeise

conducted too cursory a review of its objections to the DDOT’s scoring of its two permit

applications, “mak[ing] leaps in logic to quickly conclude—within two paragraphs—that the

published rubric and the secret rubric were consistent with one another.” ECF 3 at 21. Such “vague

and conclusory” reasoning, Spin alleges, is not the “‘reasoned decisionmaking’ necessary to

support an agency determination.” Id. at 21–22 (quoting Al Ghurair Iron & Steel LLC v. United

States, 65 F.4th 1351, 1363 (Fed. Cir. 2023); Innovator Enterprises, Inc. v. Jones, 28 F. Supp. 3d

14, 24 (D.D.C. 2014)).

This Court cannot agree. First off, the Hearing Officer’s analysis of this issue exceeded

two paragraphs and instead spanned about four single-spaced pages. See ECF 1-9 at 6–9. Second,

6 To be clear, the regulation separately provides for review of whether the agency “improperly deemed an application as incomplete,” 24 D.C.M.R. § 3317.9, which does concern whether the applicant was scored at all. Appropriately, however, Spin does not rely on that aspect of the provision because Spin does not contend that Bolt’s application was “improperly deemed . . . as incomplete,” but rather than Bolt’s application was improperly deemed as complete. Id. (emphasis added).

31 the Hearing Officer considered in some depth the specific scoring objections that Spin raised. And,

like this Court, she “f[ou]nd the language in the Randell email does not present a ‘secret criteria’

but is merely a restatement of the published score criteria” and further that there was no evidence

that application of the email rather than published scoring (if any) caused errors in the scores. For

instance, the Hearing Officer considered the submissions of the Parties and found that “the

application of industry standards to the scoring criteria is not contradictory to the published

criteria.” ECF 1-9 at 9.

Spin’s objection amounts to an argument that the Hearing Officer’s reasoning was

imperfect and could have been clearer. Perhaps. But the Supreme Court instructs courts to “uphold

a decision of less than ideal clarity” as long as “the agency’s path may reasonably be discerned.”

State Farm, 463 U.S. at 43. See also Dist. Hosp. Partners, L.P. v. Burwell, 786 F.3d 46, 61 (D.C.

Cir. 2015) (“[I]mperfection alone does not amount to arbitrary decision-making.”). This Court

need not nit-pick the agency adjudicator’s reasoned factual analysis any further to uphold it under

the deferential standard of arbitrary-and-capricious review.

v. Denial of an Evidentiary Hearing

Finally, Spin argues that the Hearing Officer arbitrarily and capriciously refused Spin’s

request for an evidentiary hearing about “DDOT’s policy regarding exceptions and the panelists’

decision to not disclose [Bolt’s] preferential treatment to other applicants.” ECF 3 at 23; ECF 1-6

at 2–3. Spin insists that such a hearing is required by the strictures of due process, and that “agency

action that denies due process rights is arbitrary and capricious.” ECF 3 at 23 (citing Del Lab’ys,

Inc. v. United States, 86 F.R.D. 676, 681 (D.D.C. 1980)).

Of course, one major problem with Spin’s argument is that the agency’s process did not

violate any due process right of Spin because Spin did not have a protected liberty or property

32 interest in the denied permits. See supra Section III.A. Further, to the extent Spin believes its right

to an evidentiary hearing arose from some other source—or from the agency’s general obligation

for reasoned decision-making—the Hearing Officer denied Spin an evidentiary hearing on a

reasonable and appropriate basis. As Calmeise explained, she did not need any testimony to assess

the issues within her review authority, and the claims of preferential treatment were not within that

authority, as discussed above. ECF 1-7 at 2; see ECF 1-8 at 10.

All told, Spin has not shown a likelihood of success on any of its claims. The Court must

deny Spin’s motion for a preliminary injunction on that basis. Ark. Dairy Coop Ass’n, Inc., 573

F.3d at 832; Brown, 386 F. Supp. 3d at 24.

* * *

For the foregoing reasons, Spin’s motion for preliminary injunction, ECF 3, is DENIED.

A separate order accompanies this memorandum opinion.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: April 24, 2025