The opinion of the court was delivered by: CORCORAN
In this action plaintiff seeks compensatory and punitive damages, as well as mandatory injunctive relief, against the Washington Metropolitan Area Transit Authority ("WMATA"), two officers of the Metro Transit Police (Hunter and Lee), and a subway station attendant (Williams). Plaintiff alleges that, in a series of incidents that took place on August 27, September 2, and September 3, 1982, he was verbally and physically assaulted, unlawfully arrested and imprisoned, and deprived of rights guaranteed him by the Fifth Amendment to the Constitution. Plaintiff claims a right of action under the common law, as well as 42 U.S.C. § 1983, inasmuch as the actions of the WMATA employees were allegedly taken "under color of state law."
WMATA has moved, pursuant to Rule 12(b) of the Federal Rules of Civil Procedure, to dismiss the complaint as against it on the grounds that (1) Section 80 of the WMATA Compact, Pub. L. No. 89-774, 89 Stat. 1324 (1966) ("Compact"), set out in D.C. Code § 1-2431 (1981), bars plaintiff's common law tort claims because the management and operation of the Metro Transit Police is a governmental function,
and (2) the Eleventh Amendment bars plaintiff's constitutional claims inasmuch as WMATA is an agency and instrumentality of its state signatories, viz., Maryland and Virginia. Plaintiff has opposed.
A. WMATA's Liability for Common Law Torts
As a quasi-governmental entity created by its signatory parties, WMATA is entitled to share the sovereign immunity of those parties with respect to common law tort actions. See Gillot v. WMATA, 507 F. Supp. 454 (D.D.C. 1981); Martin v. WMATA, 667 F.2d 435 (4th Cir. 1981); Morris v. WMATA, 226 U.S. App. D.C. 300, 702 F.2d 1037 (D.C. Cir. 1983); Qasim v. WMATA, 455 A.2d 904 (D.C. 1983), cert. denied, 461 U.S. 929, 103 S. Ct. 2090, 77 L. Ed. 2d 300, 51 U.S.L.W. 3825 (1983). A limited waiver of that immunity is embodied in Section 80 of the Compact, which provides:
The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agents committed in the conduct of any proprietary function, in accordance with the law of the applicable signatory (including rules on conflict of laws), but shall not be liable for any torts occurring in the performance of a governmental function. The exclusive remedy for such breach of contracts and torts for which the Authority shall be liable, as herein provided, shall be by suit against the Authority. Nothing contained in this Title shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties and cities within the Zone of any immunity from suit.
Thus, in order to determine WMATA's exposure to liability in this case, we must apply the functional test outlined above.
We begin our analysis with two controlling principles. First, the maintenance and operation of the Metro Transit Police is a governmental function for which WMATA enjoys immunity from tort liability under Section 80. Martin, 667 F.2d at 436; Gillot, 507 F. Supp. at 456. Second, operating a subway system is a proprietary function under Section 80 of the Compact for which tort liability may be imposed. Qasim, 455 A.2d at 906; Walker v. WMATA, No. 81-1867, mem. op. at 3 (D.D.C. June 3, 1983).
Counts 6 and 7 of the Complaint assert common law tort claims against WMATA. Count 6 alleges that WMATA willfully failed to exercise proper supervision and control of its employees, Williams, Hunter and Lee, on the dates in question. Count 7 seeks to hold WMATA vicariously liable for the tortious acts of the individual defendants under the doctrine of respondeat superior. To the extent that the claims asserted in those counts are based upon the actions of officers Hunter and Lee in their arrest of plaintiff, the claims are clearly barred by Section 80. The officers were engaged in a governmental function and WMATA cannot be held liable on these facts as a result of their actions. Thus, that much of Counts 6 and 7 is subject to dismissal.
On the other hand, defendant Williams was acting in the capacity of a station attendant, carrying out a proprietary function, to wit, managing the Van Ness subway station. WMATA can, therefore, consistently with Section 80 of the Compact, be held liable, directly and vicariously, for injuries caused by Williams' tortious acts. To this degree, Counts 6 and 7 will remain viable.
B. WMATA's Liability Under 42 U.S.C. § 1983
To be liable under 42 U.S.C. § 1983, a "person" must act "under color of any statute, ordinance, regulation, custom or usage, of any State or Territory or the District of Columbia," (i.e. "state law") to deprive another person of "any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983; Monroe v. Pape, 365 U.S. 167, 5 L. Ed. 2d 492, 81 S. Ct. 473 (1961). In the present case, we must determine (1) whether WMATA's operation and maintenance of the Metro Transit Police occurs under color of state, as opposed to federal, law, and (2) whether WMATA is a suable "person" within the meaning of 42 U.S.C. § 1983. See Morris, 702 F.2d at 1041.
First, as pointed out by the Court of Appeals in Morris, WMATA is the product of an interstate compact entered into by Maryland, Virginia and the District of Columbia, and approved by Congress as required by Art. I, § 3 of the Constitution. Pub. L. No. 89-774, 80 Stat. 1324 (1966).
The WMATA Compact has been similarly approved and enacted into "state law" by each of its signatories. See Ch. 869, Acts of General Assembly 1965, Md. Code [Transportation] § 10-204 (1977); Ch. 2, 1966 Acts of Assembly, Va. Code § 56-529, 530 (1981); D.C. Code § 1-2431 (1981).
WMATA is not a federal agency. WMATA v. Norair Engineering Corp., 180 U.S. App. D.C. 88, 553 F.2d 233, 235 (D.C. Cir. 1977); PEPCO v. State Corporation Commission, 221 Va. 632, 272 S.E.2d 214, 215 (1980). Its governing board members are appointed by the signatories, not Congress. Compact, § 5. The Compact may be amended by the signatories at any time, id., § 84, and any signatory may withdraw upon two years' written notice. Id., § 83. Were it not for Congress' special governing role with respect to the District of Columbia, the national legislature would not have any voice in the amendment and withdrawal process.
Further, WMATA's police powers are concurrent with those of its signatories and the localities in which it operates. Compact, § 76. Finally, WMATA's liability for contracts and torts, as specified in Section 80 of the Compact, is determined by the law of the applicable signatory, including rules on conflict of laws.
In light of the foregoing, we conclude that WMATA acts under color of state law for purposes of 42 U.S.C. § 1983 in the operation of its police force. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 399-400, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979); Morris, 702 F.2d at 1041; cf. WMATA v. One Parcel of Land, 706 F.2d 1312, 1316-18 (4th Cir. 1983) ...