Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


September 26, 2005.

IK PYO HONG, Plaintiff,

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' work. Id.

  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 function.
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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.