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MCKENNA v. WASHINGTON METRO. AREA TRANSIT AUTH.

June 30, 1986

Jacklyn M. McKenna, et al., Plaintiffs,
v.
Washington Metropolitan Area Transit Authority, Defendant



The opinion of the court was delivered by: PRATT

 PRATT, U.S.D.J.

 This action comes before us on defendant's motion to dismiss, or in the alternative, for summary judgment. It is undisputed that this case is one of first impression. The sole issue is whether the defendant Washington Metropolitan Area Transit Authority (WMATA) can be held liable in damages for the work-related death of one of its employees under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 et seq. Upon consideration of the briefs of the parties, the extensive legislative histories of the relevant statutes, and the entire record herein, we hold that the plaintiff has no cause of action under FELA and dismiss this suit in accordance with the following opinion.

 DISCUSSION

 Plaintiff's now deceased husband was an employee of defendant WMATA at the time of his death on February 12, 1985. Plaintiff alleges that on that date while her husband was installing new rail wheels on a maintenance truck, the structure collapsed upon him inflicting injuries which caused his death. Complaint paras. 5, 6. Defendant has moved to dismiss or in the alternative for summary judgment. On a motion to dismiss, the court must presume all factual allegations of the complaint to be true and make all reasonable inferences in favor of the non-moving party. *fn1" Plaintiff claims that the defendant is subject to FELA and is accordingly liable in damages for her husband's death.

 FELA provides that "every common carrier by railroad while engaging in commerce" shall be liable for the injury or death of an employee resulting in whole or part by the carrier's negligence. 45 U.S.C. § 51. The title of the Act, i.e., Federal Employees Liability Act is thus a misnomer; by the statute's express terms, it applies only to railroads. As the Supreme Court has observed, FELA

 
was a response to the special needs of railroad workers who are daily exposed to the risks inherent in railroad work and are helpless to provide adequately for their own safety . . . . It was the conception of this legislation that the railroad was a unitary enterprise, its economic resources obligated to bear the burden of all injuries befalling those engaged in the enterprise arising out of the fault of any other member engaged in the common endeavor.

 Sinkler v. Missouri Pacific Railroad Co., 356 U.S. 326, 329-30, 2 L. Ed. 2d 799, 78 S. Ct. 758 (1958); see also Parden v. Terminal Railway of the Alabama State Docks Department, 377 U.S. 184, 187-88, 12 L. Ed. 2d 233, 84 S. Ct. 1207 (1964)(In making FELA applicable to every common carrier by railroad, Congress meant the statute to apply to railroads, whether state-owned or privately-owned). There is no dispute between the parties that the Act is restricted to railroads. Rather, the only disagreements concern whether the defendant is a railroad within the meaning of the statute, and even assuming it is, whether WMATA has been exempted from coverage under FELA.

 The defendant WMATA was established as a public service agency in 1966 pursuant to a Congressionally approved interstate compact among the states of Virginia and Maryland and the District of Columbia. WMATA Compact, Pub. L. No. 89-774, 80 Stat. 1324 (1966)(codified as amended at D.C. Code Ann. § 1-2431 (1981 & Supp. 1985)). We need not review here the extensive legislative history of the WMATA Compact compiled by the defendant to emphasize that the purpose of the Compact was to improve public transportation for the national capital region and that WMATA was accordingly charged, inter alia, with the development, construction, and operation of a regional subway-rapid rail system. See WMATA v. Johnson, 467 U.S. 925, 104 S. Ct. 2827, 2829, 81 L. Ed. 2d 768 (1984); Morris v. WMATA, 781 F.2d 218, 39 Empl. Prac. Dec. (CCH) P 35,824 (D.C. Cir. 1986); WMATA v. One Parcel of Land, 706 F.2d 1312, 1314 (4th Cir.), cert denied, 464 U.S. 893, 78 L. Ed. 2d 229, 104 S. Ct. 238 (1983). Plaintiff grounds this action on the sole contention that WMATA "was and is operating a railway in interstate commerce," Complaint para. 3, and therefore, is an employer who is subject to liability within the meaning of FELA. Indeed, in her opposition to the pending motion to dismiss, the plaintiff submits that the specific terms of coverage in the Act are clear and unambiguous *fn2" and further that it is "equally clear" that WMATA meets these standards.

 The defendant moves to dismiss this action on two grounds. First, the great bulk of the defendant's motion is devoted to its contention that WMATA is not a railroad. Defendant principally relies on a long-recognized exception within FELA for "street railways" and argues that its subway-rapid rail system should be considered a street railway for purposes of the Act and thus exempted from FELA liability. Defendant characterizes street railways as being constructed and operated on and along the streets of a city and its suburbs to accommodate street travel by transporting passengers and their handheld baggage from point to point in a single area. Defendant reviews at length the legislative history of the WMATA Compact to emphasize the intent of the signatories to develop a strictly local transit system and to point out differences in treatment by Congress in terms of both funding and regulation between local mass transit systems and railroads. It points out that, unlike railroads covered by FELA, WMATA is not subject to regulation by the Department of Transportation, but rather by the Urban Mass Transit Administration and that its employees in their labor relations are not protected by the Railway Labor Act. It also points out a number of other differences which set WMATA apart from FELA coverage. *fn3"

 Alternatively, defendant argues that the WMATA Compact was intended to exempt WMATA from FELA liability. Nowhere in her opposition does plaintiff address defendant's contention in this regard, but instead appears to be content to rely on her belief that the terms of FELA coverage are so clear and unambiguous in applying to WMATA that further response is unnecessary. Plaintiff's analysis, while flawed, is also inconsistent. Whereas plaintiff's position rests entirely on the alleged lack of ambiguity in the terms of FELA coverage, she totally disregards the terms and thrust of the WMATA Compact and the Congressional consent legislation which were enacted long after FELA. These are clear on their face and control the question of defendant's liability for an employee's work-related death. Because we conclude that this subsequent legislation exempts the defendant from FELA liability, we need not reach the question whether WMATA is a railroad within the meaning of FELA.

 This is for the basic reason that the WMATA Compact expressly provides for WMATA's tort liability. D.C. Code Ann. § 1-2431(80). It is fundamental to disposition of this action to recognize that the WMATA Compact, and therefore this particular provision, have the force and effect of federal law. Morris v. WMATA, 781 F.2d 218, 39 Empl. Prac. Dec. (CCH) P 35,824 (D.C. Cir. 1986); WMATA v. One Parcel of Land, 706 F.2d 1312, 1316-18 (4th Cir.), cert denied, 464 U.S. 893, 78 L. Ed. 2d 229, 104 S. Ct. 238 (1983). "The consent of Congress transforms the State's agreement into federal law under the Compact Clause." Cuyler v. Adams, 449 U.S. 433, 438, 66 L. Ed. 2d 641, 101 S. Ct. 703 (1981); see also Texas v. New Mexico, 462 U.S. 554, 564, 77 L. Ed. 2d 1, 103 S. Ct. 2558 (1983). Thus, even if we assume arguendo that FELA's terms of coverage are clear and unambiguous and that WMATA constitutes a railroad within the meaning of the Act, we cannot ignore, but indeed must take note of subsequent action by Congress on precisely the same subject matter of WMATA's tort liability.

 Section 80 of the WMATA Compact provides in pertinent part:

 
The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent 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 breach of contracts and torts for which ...

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