United States District Court, D. Columbia
September 26, 2005.
IK PYO HONG, Plaintiff,
WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, et al., Defendants.
The opinion of the court was delivered by: EMMET SULLIVAN, District Judge
Plaintiff Ik Pyo Hong worked for the Washington Metropolitan
Area Transit Authority ("WMATA") as a transportation engineer
from 1992 to 2004. Plaintiff is suing WMATA and its general
counsel, Cheryl Burke, (collectively, "defendants"), challenging
defendants' determination that plaintiff is permanently barred by
WMATA's conflict-of-interest provision from accepting a Project
Director position at the Virginia Department of Rail and Public
Transportation (DRPT). Defendants have filed a Motion to Dismiss
pursuant to Federal Rule of Civil Procedure 12(b)(1), on the
basis that defendants are immune from these types of suits under
the WMATA Compact.
Upon careful consideration of the defendants' motion, the
responses and replies thereto, and for the following reasons, the
Court concludes that defendants' motion will be GRANTED and
this case will be DISMISSED WITH PREJUDICE. I. Background
WMATA was established in 1966, when Congress approved an
interstate compact (the "Compact") between Maryland, Virginia,
and the District of Columbia; the goal of the signatories to the
Compact was to improve transportation for the Washington, D.C.
metropolitan region. See D.C. Code Ann. § 9-1107.01, et seq.
(West 2001). To that end, the Dulles Corridor Rapid Transit
Project ("Dulles Corridor Project") is a joint venture involving
the U.S. Department of Transportation, the Virginia DRPT, private
developers, and WMATA, and seeks to extend WMATA's metro line to
Dulles Airport. See Complaint ("Compl.") at ¶ 9; Defendants'
Motion to Dismiss ("Def. Mot.") at 2. The structure of the Dulles
Corridor Project is such that the federal government will provide
half of the funding, contingent on approval of an environmental
impact statement and other requirements and the Virginia DRPT
will be the grantee of the federal funds. Def. Mot. at 2-3. DRPT
has entered into an agreement with a joint venture known as the
Dulles Transit Partners ("the Partners"), who will construct the
rail extension. Id. at 3. WMATA will oversee the Partners'
Until March of 2004, plaintiff was the Director of the WMATA
Office of Extensions. Compl. at ¶ 10. In this capacity,
plaintiff's responsibilities included completion of the
environmental impact statement for the Dulles Corridor Project. Compl. at ¶ 10. Defendants contend, and plaintiff does not
refute, that his duties in 2003 also included serving as WMATA's
representative in negotiations between DRPT and the Partners, and
between WMATA and DRPT. Def. Mot. at 3-4.
In October 2003, DRPT issued a solicitation seeking a Project
Director for the Dulles Corridor Project. Compl. at ¶ 12.
Plaintiff applied for the position and was selected, but, as a
result of WMATA's determination that plaintiff is permanently
barred from employment with DRPT on any projects involving the
Dulles Corridor Project, DRPT apparently canceled its offer of
employment. Compl. at ¶¶ 13-16.
WMATA's general counsel, Cheryl Burke, concluded that because
plaintiff had personally participated on high level work
involving WMATA and the DRPT, it would be a conflict of interest
for him to take the Project Director position at DRPT. Def. Mot.
at 6. Ms. Burke also determined that plaintiff was permanently
barred from such a position, pursuant to Section 6.06.02 of
WMATA's Standards of Conduct regulations, which provides:
Following termination of employment by WMATA, any
person who was an employee, officer or agent of WMATA
is permanently barred from working on any matter on
which the person participated personally and
substantially while employed at WMATA.
Plaintiff seeks declaratory and injunctive relief, claiming
Tortious Interference with Prospective Business Advantage based on what he claims is WMATA's erroneous legal opinion, which he
alleges has damaged his ability to obtain employment in his
field. Compl. at ¶¶ 22-33. Defendants have moved to dismiss the
suit on the grounds that WMATA is immune from tort actions
involving discretionary functions, such as employment decisions.
II. Standard of Review
Defendant moves to dismiss this action pursuant to
Fed.R.Civ.P. 12(b)(1), alleging that this Court lacks subject matter
jurisdiction over plaintiff's claims. In the Rule 12(b)(1)
context, the plaintiff bears the burden of establishing the
Court's jurisdiction. See, e.g., Tripp v. Executive Office of
the President, 200 F.R.D. 140, 142 (D.D.C. 2001) ; Vanover v.
Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999) (citing Pitney
Bowes Inc. v. U.S. Postal Serv., 27 F. Supp. 2d 15, 19 (D.D.C.
1998)). In so doing, the plaintiff may rely on and the Court may
consider materials outside of the pleadings without converting a
motion to dismiss into a motion for summary judgment. See
Fed.R.Civ.P. 12(b)(1); Land v. Dollar, 330 U.S. 731, 735 n. 4,
67 S. Ct. 1009 (1947) ("[W]hen a question of the District Court's
jurisdiction is raised, either by a party or by the court on its
own motion, . . . the court may inquire, by affidavits or
otherwise, into the facts as they exist."); Teva
Pharmaceuticals, USA, Inc. v. U.S. Food and Drug Admin.,
182 F.3d 1003, 1008 (D.C. Cir. 1999); Artis v. Greenspan,
158 F.3d 1301, 1305-06 (D.C. Cir. 1998). III. Discussion
A. The Scope of WMATA's Immunity
As a Compact between Maryland, Virginia, and the District of
Columbia, WMATA shares their sovereign immunity. See Beebe v.
WMATA, 129 F.3d 1283, 1287 (D.C. Cir. 1997); Sanders v. WMATA,
819 F.2d 1151, 1154 (D.C. Cir. 1987); Morris v. WMATA,
781 F.2d 218, 219-220 (D.C. Cir. 1986). Section 80 of the Compact waives
that immunity for certain types of torts committed in the
performance of a proprietary function, but retains immunity for
torts occurring in the performance of a governmental function.
The Authority shall be liable for its contracts and
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 (including rules on conflict
of laws), but shall not be liable for any torts
occurring in the performance of a governmental
See D.C. Code. Ann. § 9-1107.01(80).
As the court in Beebe explained,
[T]he immunity question often turns on whether the
activity is `discretionary' or `ministerial,' a
dichotomy employed by the Federal Tort Claims Act. . . .
To determine whether a function is discretionary,
and thus shielded by sovereign immunity, we ask
whether any `statute, regulation, or policy
specifically prescribes a course of action for an
employee to follow.' . . . If no course of action is
prescribed, we then determine whether the exercise of
discretion is `grounded in `social, economic, or
political goals.' . . . If so grounded, the activity
is `governmental,' thus falling within section 80's
retention of sovereign immunity.
129 F.3d at 1287 (citations omitted). B. Defendants' Determination that Plaintiff was Permanently
Barred from Employment by DRPT on the Dulles Corridor Project
1. Plaintiffs' Claims Against WMATA
Defendants concluded that plaintiff was barred from work with
DRPT on the Dulles Corridor Project because he had personally and
substantially participated on Dulles Corridor Project work while
working for WMATA. Def. Opp. at 6. Plaintiff argues that that
legal determination regarding the conflict of interest and
WMATA's decision to publish that determination to plaintiff's
prospective employer, DRPT, was ultra vires and thus can be
reviewed by this Court. Pl. Opp. at 4-5. Plaintiff also
challenges the substance of WMATA's determination that the DRPT
Project Director position would be a conflict of interest,
contending that the environmental impact statement portion of the
project had concluded and that the work he sought to do for DRPT
was different in scope and kind from what he had done for WMATA.
Pl. Opp. at 6. Finally, plaintiff claims that WMATA's regulation
section 6.06.02 is an invalid covenant not to compete. Pl. Opp.
Defendants counter that there are strong public policy reasons
for the post-WMATA employment restrictions plaintiff is
challenging. Defendants contend that these "revolving door" rules
prevent actual or apparent conflicts of interest that erode
public confidence in government and prevent favoritism, improper influence, and corruption in government contracting. Def. Mot. at
8. Defendants also maintain that plaintiff's work on the Dulles
Corridor Project went beyond the environmental impact statement
and that their "revolving door" limitations, common throughout
federal and state governments, fall within WMATA's authority.
Def. Reply at 2-3.
2. Plaintiff's Claims Against Defendant Cheryl Burke
Plaintiff argues generally that the defendants' actions,
including the actions of General Counsel Cheryl Burke, were
ultra vires and therefore they are not shielded by immunity as
discretionary functions. Pl. Opp. at 4. Defendants, on the other
hand, contend that the Complaint alleges no wrongdoing by Ms.
Burke and does not allege that she was acting outside the scope
of her employment when she issued her legal opinion that
plaintiff was permanently barred under WMATA's regulations from
working for DRPT on the Dulles Corridor Project, and that
therefore the claims against her must be dismissed.
C. The Court Lacks Subject Matter Jurisdiction Over
Plaintiff's Claims Against Defendants WMATA and Burke
This case is controlled by Burkhart v. WMATA, 112 F.3d 1207
(D.C. Cir. 1997) and Beebe v. WMATA, 129 F.3d 1283 (D.C. Cir.
1997). Those cases compel this Court to dismiss plaintiffs'
Complaint against both defendants, for lack of subject matter
jurisdiction. In Burkhart, a passenger sued WMATA after a physical
altercation with a bus driver. 112 F.3d at 1209. A jury found
WMATA liable for negligent hiring, training, and supervision. On
appeal, WMATA claimed that it was immune from such suits. The
U.S. Court of Appeals for this circuit held that the negligence
claims should have been dismissed. Id. at 1217. Specifically,
the court stated
The WMATA compact confers upon WMATA broad power to
`[c]reate and abolish . . . employments' and `provide
for the qualification, appointment, [and] removal . . .
of its . . . employees without regard to the laws
of any of the signatories,' . . .; `[e]stablish, in
its discretion, a personnel system based on merit and
fitness,' . . . and `control and regulate . . . the
service to be rendered' . . .
The hiring, training, and supervision choices that
WMATA faces are choices `susceptible to policy
judgment.' The hiring decisions of a public entity
require consideration of numerous factors, including
budgetary constraints, public perception, economic
conditions, `individual backgrounds, office
diversity, experience and employer intuition.' . . .
Similarly, supervision decisions involve a complex
balancing of budgetary considerations, employee
privacy rights, and the need to ensure public
safety. . . . Such decisions are surely among those
involving the exercise of political, social, or
As a result, we conclude that the hiring, training,
and supervision of WMATA personnel are governmental
Id (citations omitted).
Six months after it decided Burkhart, the Court of Appeals
for this circuit issued its opinion in Beebe v. WMATA. In that
case, an employee brought tort and contract claims including wrongful interference with employment relationship after the
department within which he worked was reorganized and he applied
but was not selected for a particular position within the
reorganized department, but instead was given a different
position. 129 F.3d at 1286.
After a discussion of governmental versus proprietary functions
and the holding in Burkhart, id. at 1287, the appellate court
[A]ll actions challenged by Beebe involved a large
measure of choice, and we perceive no distinction
between the discretion here and the hiring, training,
and supervision of bus operators at issue in
Burkhart. If anything, the activity in this case
reorganizing an entire office involved even greater
degrees of political, social and economic
Id. at 1288. The court thus affirmed the district court's
dismissal of the tort claims. Id.
Importantly for the case presently before this Court, the
Beebe court also had to consider whether two WMATA officials
sued in their individual capacities for their involvement with
the reorganization were also immune from suit. Id. After noting
that the "scope of immunity of WMATA employees for torts
committed in the course of governmental or discretionary
functions is a road not well traveled," the appellate court
concluded that the individuals were also immune from suit. Id.
at 1288-89. The court specifically found that even the
intentional torts and the individuals' actions motivated by what plaintiff claimed was personal animus, were related to their
roles in the reorganization and that none of plaintiff's
allegations came "even close to [the] extremes" where officials'
actions are found to fall outside the scope of their official
responsibilities. Id. at 1289.
Like the employment decisions at issue in Burkhart and
Beebe, WMATA's conflict-of-interest and "revolving-door" rules
involve choices, policy considerations, and "political, social,
and economic considerations." It is not hard to imagine the kinds
of considerations and competing interests that might go into
developing and enforcing a regulation such as section 6.06.02.
For example, on the one hand, WMATA wants to be able to attract
qualified, highly-trained individuals for senior positions, and
needs to be able to compete with private industry in doing so; a
restrictive post-employment policy might deter
otherwise-interested individuals from seeking such positions. On
the other hand, WMATA must be concerned about public perception,
loyalty, and the risk that private industry employers will "raid"
WMATA seeking to lure WMATA employees away for any number of
reasons, such as their experience, connections, and/or access to
public officials. As defendants persuasively argue, plaintiff's
case raises exactly these kinds of concerns because he
represented and negotiated on behalf of WMATA with the very same entity and on the very same project with whom he now seeks to
Thus, in accordance with Burkhart and Beebe, the Court
concludes that WMATA's determination that plaintiff is
permanently barred from working for DRPT as a Project Director on
the Dulles Corridor Project is a discretionary function and WMATA
is immune from plaintiff's claims. Furthermore, the Court finds
nothing in plaintiff's Complaint or pleadings that would support
a finding that Defendant Burke was acting outside the scope of
her employment when she issued the legal opinion at issue in this
case. See Beebe, 129 F.3d at 1289. Therefore, Burke, too,
enjoys immunity from this suit because she was engaged in a
For the foregoing reasons, the Court determines that defendants
are immune from suit with regard to their legal opinion that
plaintiff is permanently barred from employment with DRPT on the
Dulles Corridor Project. Accordingly, defendants' motion to
dismiss is GRANTED and plaintiff's Complaint is DISMISSED WITH
PREJUDICE. A separate Order and Judgment accompanies this
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