The opinion of the court was delivered by: JOHN BATES, District Judge
Plaintiff Jonathan Vakassian has brought this action pursuant
to 42 U.S.C. §§ 1983 and 1988 against defendants Washington
Metropolitan Area Transit Authority ("WMATA") and Polly Hanson,
Chief of Police of the WMATA Police Department, in both her
official and individual capacity. Plaintiff is suing for damages
and costs stemming from his allegedly unlawful termination; he
also seeks declaratory and injunctive relief. Currently before
the Court is defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6) for failure to state a claim upon which relief
can be granted. For the reasons discussed below, the Court will
grant in part and deny in part defendants' motion to dismiss. BACKGROUND
Plaintiff is a former non-probationary WMATA Police Department
officer. Compl. at ¶ 5. On March 23, 2004, Hanson handed
plaintiff a written notice of termination for fourteen counts of
alleged administrative misconduct. Id. at ¶¶ 10, 31. The next
day, plaintiff filed a grievance with WMATA challenging the
"veracity" of the misconduct allegations and the "propriety of
his termination." Id. at ¶ 14.
Hanson met with representatives from plaintiff's union and then
denied plaintiff's grievance on May 7, 2004. Id. at ¶ 15. Five
days later, plaintiff filed a request for a trial board in order
to challenge his termination. Id. at ¶ 16. According to the
applicable collective bargaining agreement, plaintiff is entitled
to either a trial board proceeding or arbitration upon request.
Id. at ¶¶ 16, 17. Hanson denied plaintiff's request for a trial
board. Id. at ¶ 19. Plaintiff subsequently sent a letter
explaining the legal basis for his right to a trial board to
defendants' manager of Arbitration and Mediation Administration,
Matilda Broadnax. Id. at ¶¶ 20, 21. On July 7, 2004, Broadnax
informed defendant (on behalf of Hanson) that his termination
would not be rescinded and that a trial board would not be
granted. Id. at ¶ 24. Plaintiff again petitioned Broadnax for a
trial board on December 9, 2004, but was denied. Id. at ¶¶ 25,
Plaintiff filed the instant action on April 12, 2005. Count I
of the complaint alleges an unconstitutional deprivation of
procedural due process that occurred when defendants terminated
plaintiff without holding a pre-termination hearing. Count II
alleges an unconstitutional deprivation of procedural due process
stemming from defendants' refusal to provide plaintiff with a
post-termination trial board upon request. Count III alleges a
deprivation of plaintiff's liberty interest because defendants'
actions have precluded plaintiff from obtaining employment in law enforcement. Finally, Count IV is a claim for breach of
contract that allegedly occurred when defendants refused to grant
a trial board pursuant to the terms of the collective bargaining
agreement. Plaintiff brings all four counts against WMATA and
Hanson. Hanson is sued in both her official and personal
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) will
not be granted unless "it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957); see also Haynesworth v. Miller, 820 F.2d 1245, 1254
(D.C. Cir. 1987). The Federal Rules of Civil Procedure require
only that a complaint contain "`a short and plain statement of
the claim' that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests." Dura
Pharms., Inc. v. Broudo, 125 S. Ct. 1627, 1634 (2005) (quoting
Conley, 355 U.S. at 47)). "Given the Federal Rules' simplified
standard for pleading, `[a] court may dismiss a complaint only if
it is clear that no relief could be granted under any set of
facts that could be proved consistent with the allegations.'"
Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514 (2002) (quoting
Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)).
Under Rule 12(b)(6), the plaintiff's factual allegations must
be presumed true and should be liberally construed in his or her
favor. Leatherman v. Tarrant Cty. Narcotics and Coordination
Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons,
591 F.2d 966, 968 (D.C. Cir. 1979). The plaintiff must be given
every favorable inference that is supported by the allegations of
fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow v.
United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000). Conclusory legal and factual
allegations, however, need not be considered by the court. Domen
v. Nat'l Rehab. Hosp., 925 F. Supp. 830, 837 (D.D.C. 1996)
(citing Papasan v. Allain, 478 U.S. 265, 286 (1986)).
The Court must first evaluate the extent to which sovereign
immunity shields the defendants from plaintiff's claims. The
Eleventh Amendment, as interpreted, bars suits against state
governments by citizens. Alden v. Maine, 527 U.S. 706, 712-13
(1999). There are three general exceptions, all of which are
invoked in this case: "suits against state officers for
injunctive relief or money damages; suits based on consent to
federal court jurisdiction; and suits pursuant to congressional
statutes, especially pursuant to civil rights laws." Erwin
Chemerinsky, FEDERAL JURISDICTION 409 (4th ed. 2003).
The court will address sovereign immunity first in connection
with the claims against WMATA, and then will proceed to discuss
the doctrine's applicability to the claims against Hanson in her
official and individual capacities, respectively.
I. Sovereign Immunity of WMATA
Under the doctrine of sovereign immunity, the Eleventh
Amendment shields states from suits brought by citizens. Will v.
Mich. Dep't of State Police, 491 U.S. 58, 65-66 (1989). WMATA is
the product of an interstate compact between Maryland, Virginia
and the District of Columbia and thus shares the sovereign
immunity of those states. Barbour v. WMATA, 374 F.3d 1161, 1163
(D.C. Cir. 2004) (stating that "WMATA shares the sovereign
immunity of its state sponsors"); see Hedgepeth v. WMATA, 386 F.3d 1148, 1152
n. 3 (D.C. Cir. 2004).*fn1 Moreover, this Circuit has held
that "decisions concerning the hiring, training, and supervising
of WMATA employees are discretionary in nature, and thus immune
from judicial review." Burkhart v. WMATA, 112 F.3d 1207, 1216
(D.C. Cir. 1997). The Court therefore dismisses the claims
brought against WMATA in Counts I, II and III.
WMATA is not immune, however, with respect to the contract
claim brought under Count IV because Burkhart extends sovereign
immunity to WMATA only for certain tortious conduct, not for
contract claims. See Martin v. WMATA, 273 F. Supp. 2d 114,
118 n. 2 (D.D.C. 2003). "Section 80 of the compact [between
Maryland, Virginia and the District of Columbia creating WMATA]
waives WMATA's sovereign immunity for contractual disputes."
Beebe v. WMATA, 129 F.3d 1283, 1289 (D.C. Cir. 1997). Section
80 states in pertinent part:
The Authority shall be liable for its contracts . . .
The exclusive remedy for such breach of contracts . . .
for which the Authority shall be liable, as herein
provided, shall be by suit against the authority.
Defendant submits that plaintiff's claim under Count IV is really
a disguised wrongful termination claim, and that it is immune
from suit because section 80 and Burkhart do not abrogate
sovereign immunity as to tort claims. Specifically, section 80
provides that "[t]he Authority . . . shall not be liable for any
torts occurring in the performance of a governmental function."
But the law allows plaintiffs to be the "masters of their cases";
so long as a claim is properly colorable under the law, the
plaintiff may choose to pursue it, even though the defendant may believe that a different legal avenue is more appropriate.
Defendant may not, at its whim, convert plaintiff's breach of
contract claim into a claim that sounds in tort, and then assert
that sovereign immunity precludes that tort claim. As a
third-party beneficiary to the collective ...