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.
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 ...