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SANDERS v. WASHINGTON METRO. AREA TRANSIT AUTH.

January 7, 1986

CARL A. SANDERS, et al., Plaintiffs
v.
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, Defendant



The opinion of the court was delivered by: PENN

 The plaintiffs, employees of defendant Washington Metropolitan Transit Authority (WMATA), filed this action on October 31, 1984. Under the terms of the defendant's Work Agreement, WMATA requires its operating employees to undergo blood and urine tests following any serious operating incident and upon return after a period of sick leave, in order to detect the presence of addictive or controlled substances in the employees system. The plaintiffs were terminated based upon the results of their post-incident medical examinations. *fn1"

 The plaintiffs now challenge their terminations alleging deprivation of their Fourth and Fourteenth Amendment rights, deprivation of their right to privacy, negligent termination, violation of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 701 et. seq., and violation of 42 U.S.C. § 1983. The matter is now before the Court on the defendant's motion for summary judgment.

 WMATA IS ENTITLED TO INVOKE ELEVENTH AMENDMENT IMMUNITY

 The defendant contends that WMATA, as an arm of the state government, is entitled to invoke Eleventh Amendment immunity. In opposition, the plaintiffs assert that WMATA is not so entitled, and that even if WMATA is entitled to invoke Eleventh Amendment immunity, it has waived that right because the acts in question constituted the performance of "proprietary" rather than "governmental" functions.

 The question of the defendant's entitlement to Eleventh Amendment immunity turns upon whether or not WMATA is an "instrumentality of the signatory parties" and an arm of the state, rather than a mere "political subdivision." WMATA was created by an interstate compact entered into by Maryland, Virginia, and the District of Columbia. WMATA Compact, Pub. L. No. 89-774, 80 Stat. 1324 (1966). The test for determining whether such an agency is entitled to Eleventh Amendment protection is set forth in Lake Country Estate, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 401, 99 S. Ct. 1171, 1177, 59 L. Ed. 2d 401 (1979):

 
If an interstate compact discloses that the compacting States created an agency comparable to the county or municipality, which has no Eleventh Amendment immunity, the Amendment should not be construed to immunize such 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.

 Under these circumstances, "the Court must look to the language of the compact" to determine whether Congress and the states intended WMATA to be an arm of state government." Strange v. Chumas, 580 F. Supp. 160, 163 (D. D.C. 1983).

 Several courts in this circuit have addressed this issue, and there appears a split in decisions. See Stitt v. WMATA, C.A. 81-3880 (D. D.C. 1985) (WMATA entitled to invoke Eleventh Amendment immunity); Andrew M. Clarke, Jr. v. WMATA, 654 F. Supp. 712 (D. D.C. 1985) (WMATA entitled to Eleventh Amendment immunity): Strange v. Chumas, supra (WMATA entitled to invoke Eleventh Amendment immunity); Heffez v. WMATA, 569 F. Supp. 1551 (D. D.C. 1983) (WMATA not entitled to invoke Eleventh Amendment immunity). This Court finds most persuasive the weight of authority which holds that WMATA is entitled to invoke Eleventh Amendment immunity as an arm of the government.

 WMATA HAS NOT WAIVED ITS IMMUNITY

 Once Eleventh Amendment immunity is established, the next issue presented involves whether WMATA has waived that immunity. The plaintiffs contend, that as the actions in question constituted an exercise of a proprietary function, WMATA is estopped from claiming Eleventh Amendment immunity from the plaintiffs' tort action. Section 80 of WMATA's compact 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 . . . but shall not be liable for any torts occurring in the performance of a governmental function.

 D.C. Code § 1-2431 (1981).

 As cited by both parties, "the test for determining whether a particular activity is governmental or proprietary is whether the act is for the common good of all without the element of special corporate benefit, or pecuniary profit." 18E McQuillen, Municipal Corporations, § 53.29 at ...


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