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CLARKE v. WASHINGTON METRO. AREA TRANSIT AUTH.

August 30, 1985

Andrew W. Clarke, Jr., Plaintiff,
v.
Washington Metropolitan Area Transit Authority, Defendant


Thomas A. Flannery, U.S.D.J.


The opinion of the court was delivered by: FLANNERY

THOMAS A. FLANNERY, U.S.D.J.

 This matter is before the court on defendant's motion to dismiss based on defendant's immunity from suit under the eleventh amendment to the United States Constitution. The plaintiff has also moved to amend his complaint to include a Bivens-type constitutional tort claim. For reasons set forth below, defendant's motion to dismiss is granted and plaintiff's motion to amend his complaint is denied.

 I. Background

 Plaintiff Andrew W. Clarke, Jr., a black male, is an employee of the defendant Washington Metropolitan Area Transit Authority. Plaintiff alleges that he was twice denied a promotion to the Track Equipment Instructor position in spite of his instructing experience and job performance. Plaintiff further alleges that both times the position was filled with less qualified employees. The original basis for Clarke's complaint was the District of Columbia Human Rights Law, D.C. Code § 13-423 and § 1-2501 et seq. (1981 ed.). That claim was dismissed by the court on August 16, 1984. On September 10, 1984, plaintiff amended his complaint to include a claim based on 42 U.S.C. §§ 1981 and 1983 and upon a public policy concept against racial discrimination. Plaintiff now seeks to amend his complaint a second time to include a Bivens-type constitutional tort claim.

 The defendant, Washington Metropolitan Area Transit Authority, is an interstate agency created by compact between the State of Maryland, the Commonwealth of Virginia and the District of Columbia. WMATA has moved to dismiss the plaintiff's case arguing that the eleventh amendment clothes it with immunity from suit.

 The plaintiff contends that WMATA is not an instrumentality of the states, but rather a local agency which does not enjoy eleventh amendment immunity. The plaintiff bases this contention on the fact that funding for WMATA comes from operating revenues and from local governments and that WMATA has independent authority to enter into contracts and to incur debts. The plaintiff further contends that even if the eleventh amendment provides some protection for WMATA, that WMATA has waived that immunity in this case. The plaintiff supports that contention with language in the compact which waives immunity for certain tort and contract actions.

 II. Discussion

 A. Is WMATA Immune under the Eleventh Amendment ?

 In Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 59 L. Ed. 2d 401, 99 S. Ct. 1171 (1979), the United States Supreme Court set out the test for determining whether an agency created by interstate compact is entitled to the protection of the eleventh amendment.

 
If an interstate compact discloses that the compacting States created an agency comparable to a county or municipality, which has no Eleventh Amendment immunity, the Amendment should not be construed to immunize such an entity. Unless there is good reason to believe that the States structured the new agency to enable it to enjoy the special constitutional protection of the States themselves, and that Congress concurred in that purpose, there would appear to be no justification for reading additional meaning into the limited language of the Amendment.

 440 U.S. at 401, 99 S. Ct. at 1177.

 Thus, to determine whether or not WMATA is immune under the eleventh amendment, the Court must determine first, whether Maryland, Virginia, and the District of Columbia, *fn1" the states which structured WMATA, created it in a manner to give it eleventh amendment protection, and second, whether Congress, when approving the compact, concurred in that structuring. Two decisions from this court have held that WMATA was so structured. See Morris v. WMATA, 583 F. Supp. 1522 (D.D.C. 1984); Strange v. Chumas, 580 F. Supp. 160 ...


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