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December 14, 2005.


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 On July 7, 2004, Broadnax informed defendant (on behalf of Hanson) that his termination would not be rescinded and that a trial board would not be granted.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, 26.

  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 capacities.


  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 ...

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