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March 21, 1997


The opinion of the court was delivered by: LAMBERTH

 This matter comes before the court on plaintiff Wainwright's motion to reinstate punitive damages against defendant Washington Metropolitan Area Transit Authority ("WMATA"). For the reasons set forth below, plaintiff's motion is denied.


 Plaintiff filed suit for injuries arising from an injury sustained from an escalator operated by WMATA, and included a count for punitive damages against both defendant WMATA and defendant Westinghouse/Schindler. In an opinion of this court dated October 17, 1995, the punitive count against WMATA was dismissed. Wainwright v. WMATA, 903 F. Supp. 133, 137 (D.D.C. 1995). Though defendant claimed WMATA to be immune from any punitive damages as a general matter, the court never reached that issue, as even under plaintiff's own claim that punitives were available if "extraordinary circumstances" were shown, such circumstances had not been shown and defendant's motion for summary judgment on this claim was granted. However, after newly discovered evidence was produced by WMATA, this court entertained Wainwright's motion to reinstate punitive damages, on plaintiff's claim that "extraordinary circumstances" could now be demonstrated.

 After careful consideration of the issues presented, the court now finds that, as a general matter, WMATA is, in fact, immune from any award of punitive damages.


 WMATA was established by an interstate compact entered into by Maryland, Virginia and the District of Columbia, which was consented to by Congress. Pub.L. No. 89-774, 80 Stat. 1324 (1966), as amended. As a governmental entity, WMATA claims to come before this court complete with the attendant immunities governmental entities enjoy.

 Plaintiff Wainwright advances the argument that § 12(a) of WMATA's compact contains a "sue or be sued" clause, which, according to the plaintiff, "constitutes a full waiver of WMATA's sovereign immunity for all purposes, including punitive damages." Pl.'s Reply in Supp. of Mot. to Reinst. Pun. Dam. and for Sanct., October 24, 1996 at 7 (emphasis in original). *fn1" Therefore, plaintiff wishes to pursue his claim for punitive damages against WMATA as if WMATA were a standard, private corporation.

 WMATA, however, argues that § 80 of the compact, which reads:

The Authority [WMATA] 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

 establishes WMATA's immunity. To this end, WMATA submits a number of cases disallowing punitive damages against it *fn2" , but these cases are generally cursory and do not specifically address the issue raised by plaintiff: what does the "sue or be sued" clause mean in the face of clear precedent finding WMATA immune to suit in at least in some respects?

 Despite Wainwright's protestations that WMATA has fully waived its immunity as a result of § 12(a) "sue and be sued" language, case law does not support this proposition. Plaintiff argues that under Federal Housing Administration v. Burr, 309 U.S. 242, 245, 84 L. Ed. 724, 60 S. Ct. 488 (1940), sue or be sued clauses should be liberally construed, and in Wainwright's eyes, this allows WMATA to be sued for anything a private corporation could be liable for, including punitive damages. See Baker v. Runyon, 922 F. Supp. 1296, 1297-98 (N.D. Ill. 1996)(ruling that a sue or be sued clause in postal service statute allows punitive damages); Federal Deposit Insurance Corp. v. Meyer, 510 U.S. 471, 114 S. Ct. 996, 127 L. Ed. 2d 308 (1994)(holding that the FSLIC's sue-and-be-sued clause waived sovereign immunity for constitutional tort claims).

 Plaintiff argues that under Meyer, absent a clear showing that Congress meant to narrow the scope of the sue or be sued clause, it is presumed that immunity is fully waived. *fn3" That may be, but the WMATA statute does give a clear showing. It's called Section 80 of the WMATA compact. There, the statute indicates the signatories' and Congress' desire to make WMATA immune from torts occurring from the performance of governmental functions, but to be liable for torts occurring when operating in a proprietary function. *fn4"

 Furthermore Wainwright completely ignores or misconstrues two prior cases from this circuit which unequivocally indicate that WMATA has ...

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