Appeals from the Superior Court of the District of Columbia (CA5603-98) (Hon. Brook Hedge, Trial Judge)
Before Wagner, Chief Judge, and Terry, Steadman, Schwelb, Farrell,
Ruiz, Reid, Glickman, and Washington, Associate Judges.
The opinion of the court was delivered by: Per Curiam
ON PETITION FOR REHEARING EN BANC
On February 15, 2001, in Dingwall v. District of Columbia Water and Sewer Auth., 766 A.2d 974 (D.C. 2001) (Dingwall I), a division of this court held, inter alia, that in an action for negligence against the District of Columbia Water and Sewer Authority (WASA), appellant Carolyn A. Dingwall was not required by D.C. Code § 12-309 (1995) to provide pre-suit notice to the Mayor. Id. at 977-79. The division further held that D.C. Code § 43-1672 (b) (1998), which provides in pertinent part, with exceptions not here applicable, that WASA shall be "subject to all laws applicable to offices, agencies, [and] departments of the District government," does not confer upon WASA the protections provided to the District by § 12-309. Id. at 979-80.
On June 7, 2001, we granted WASA's petition for rehearing en banc with respect to the foregoing issues and vacated the decision in Dingwall I. Dingwall v. District of Columbia Water and Sewer Auth., 773 A.2d 423, 424 (D.C. 2001) (per curiam) (Dingwall II). The en banc court now reinstates and adopts the division opinion in Dingwall I, with some brief elaboration as set forth below.
WASA points out that § 12-309 is in derogation of the common law principle of sovereign immunity, that the statute must be construed narrowly against claimants, see, e.g., Gross v. District of Columbia, 734 A.2d 1077, 1081 (D.C. 1999), and that § 12-309 therefore applies to suits against agencies that are "within" the District government, whether or not those agencies are sui juris. WASA also argues that the division's construction of the words "subject to" in § 43-1672 (b) is too narrow. According to WASA, the two statutes, when considered together, confer upon WASA the right to pre-suit notice which is provided in tort actions against the District by § 12-309.
We do not agree. Section 12-309 applies, by its terms, only to actions against the District of Columbia. *fn2 By contrast, the Federal Tort Claims Act (FTCA) contains a pre-suit notice provision for claims against a "Federal Agency." 28 U.S.C. § 2401 (b). Congress has expressly defined "Federal Agency" to include "the executive departments, the judicial and legislative branches, independent establishments of the United States, and corporations acting as instrumentalities or agencies of the United States." Id. § 2671 (emphasis added). Congress could have written, but did not write, a similarly broad notice provision into § 12-309.
According the language of § 43-1672 (b) its common everyday meaning, we conclude, as did the division, that this statute simply requires WASA to comply with all of the laws, regulations, and other obligations applicable to other agencies and instrumentalities of the District of Columbia. In our view, the construction of § 43-1672 (b) for which WASA contends goes far beyond the natural import of the words used by the legislature. Accord, United States ex rel Totten v. Bombardier Corp., __ U.S. App. D.C. __, __, 286 F.3d 542, 547 (2002) ("an entity is subject to a particular legal regime when it is regulated by, or made answerable under, that regime") *fn3 (rev'g 139 F. Supp. 2d 50 (D.D.C. 2001)); see also Downs v. Bd. of Trs. of the Univ. of the District of Columbia, 112 Daily Wash. L. Rptr. 493, 498 (Super. Ct. D.C. 1984) ("the extension of § 12-309 by judicial construction to suits not reached by its terms would, in the court's view, deprive plaintiffs of the right to reasonable notice [of what they must do to have their cases heard on the merits"]) (quoted in Dingwall I, 766 A.2d at 979).
For the foregoing reasons, the judgment and opinion in Dingwall I are reinstated. The case is remanded to the trial court for further proceedings, consistent with this opinion and with Dingwall I, with respect to Count II of the complaint.
Farrell, Associate Judge, dissenting:
I join Judge Ruiz's cogent opinion. I can see no reason, textual or otherwise, why the words "subject to" in § 34-2202.02 (b) should not be read to mean simply that the same laws - "all laws" - "applicable to offices, agencies, departments, and instrumentalities of the District government" are likewise applicable to WASA. The court's narrow interpretation of those words as "impos[ing] duties . . . and restrictions," but not "confer[ring] protections," comes with no explanation of why the Council would have wanted to deny WASA, part of the District government, the same protection of notice in responding to complaints that the District has long enjoyed in operating the water and sewer system.
But even accepting the court's reading of those two words as incorporating only statutes that subject WASA to obligations, the majority does not come to grips with the line of decisions of this court construing § 12-309 as a relinquishment by the District of traditional governmental immunity, provided it has received the notice set forth in the statute. See, e.g., Campbell v. District of Columbia, 568 A.2d 1076, 1078 (D.C. 1990) ("[B]ecause § 12-309 is in derogation of the common law concept of sovereign immunity, [its notice requirement] must be strictly construed . . . against waiver of immunity."); Gwinn v. District of Columbia, 434 A.2d 1376, 1378 (D.C. 1981) ("Section 12-309 constitutes a departure from the common law concept of sovereign immunity."); Kelton v. District of Columbia, 413 A.2d 919, 920 (D.C. 1980) (affirming dismissal "for failure to meet the six-month notice requirement in the District of Columbia's statutory waiver of sovereign immunity. D.C. Code . . . § 12-309."). Although the question of what immunity the District in fact possesses is a complex one, see District of Columbia v. Owens-Corning Fiberglas Corp., 572 A.2d 394, 400, 403-04 (D.C. 1989), the ...