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Slack v. Washington Metropolitan Area Transit Authority

United States District Court, District of Columbia

August 30, 2018

ROBYN SLACK, Plaintiff,


          TREVOR N. McFADDEN, U.S.D.J

         Plaintiff Robyn Slack lost her job at the Washington Metropolitan Area Transit Authority, or WMATA, after refusing to act as the sole point of contact for a procurement contract, which she believed would have violated the law. She sued WMATA for unlawful retaliation and her supervisor, Judy Mewborn, for defamation. WMATA has moved to dismiss two of Ms. Slack's retaliation claims, which arise under the False Claims Act and the District of Columbia Whistleblower Protection Act.[1] Because sovereign immunity bars these claims, WMATA's Motion to Dismiss Counts I and III of the Complaint will be granted.


         “Federal courts are courts of limited jurisdiction” and so “possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994). So a federal court must satisfy itself that it has jurisdiction over a claim before proceeding to the merits and must dismiss any action over which it determines that it lacks jurisdiction. Moms Against Mercury v. FDA, 483 F.3d 824, 826 (D.C. Cir. 2007); see also Fed. R. Civ. P. 12(h)(3). On a motion to dismiss for lack of jurisdiction under Federal Rule of Civil Procedure 12(b)(1), the plaintiff bears the burden of establishing jurisdiction. Georgiades v. Martin-Trigona, 729 F.2d 831, 833 n.4 (D.C. Cir. 1984). A plaintiff may rely on facts outside the pleadings to satisfy this burden, as “the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court's resolution of disputed facts.” Herbert v. Nat'l Acad. of Scis., 974 F.2d 192, 197 (D.C. Cir. 1992).

         II. ANALYSIS

         The Eleventh Amendment generally prohibits a federal court from exercising jurisdiction over claims against a state. U.S. Const. amend. XI (“The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.”); see also Bd. of Trs. of the Univ. of. Ala. v. Garrett, 531 U.S. 356, 363 (2001) (“Although by its terms the Amendment applies only to suits against a State by citizens of another State, our cases have extended the Amendment's applicability to suits by citizens against their own States.”). As Ms. Slack appears to concede, when Virginia, Maryland, and the District of Columbia created WMATA, they conferred their sovereign immunity upon it. Morris v. WMATA, 781 F.2d 218, 219-220 (D.C. Cir. 1986).[2]

         But there are two primary exceptions to WMATA's Eleventh Amendment immunity. Barbour v. WMATA, 374 F.3d 1161, 1163 (D.C. Cir. 2004). First, Congress may limit Eleventh Amendment immunity by statute if it “unequivocally expresse[s] its intent to abrogate that immunity” and acts within its constitutional authority. Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). Second, a state may voluntarily waive its immunity by making a “clear declaration” that it intends to submit itself to a federal court's jurisdiction. Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675-76 (1999). So the question that the Motion to Dismiss presents is whether Ms. Slack has shown an abrogation or waiver of WMATA's sovereign immunity from suit under the False Claims Act, or FCA, and under the District of Columbia Whistleblower Protection Act, or DCWPA.

         A. The FCA Does Not Abrogate Eleventh Amendment Immunity

         Count III of Ms. Slack's Complaint alleges whistleblower retaliation in violation of the FCA and can proceed only if Ms. Slack shows that the FCA applies to WMATA. As noted above, Congress can only abrogate Eleventh Amendment immunity if it “unequivocally expresse[s] its intent to abrogate that immunity” and acts within its constitutional authority. Kimel, 528 U.S. at 73. Because “abrogation of sovereign immunity upsets the fundamental constitutional balance between the Federal Government and the States, ” courts apply a “stringent” test to claims of abrogation, requiring that Congress make its intention “unmistakably clear in the language of the statute.” Dellmuth v. Muth, 491 U.S. 223, 227-28 (1989). A statute could satisfy this test by providing that the states “shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation.” See Id. at 229-30. But even a statute that anticipates suits against states and provides for suit in federal courts fails to satisfy this test if it “makes no reference whatsoever to either the Eleventh Amendment or the States' sovereign immunity.” See Id. at 231-32.

         The FCA's whistleblower retaliation provision provides:

Any employee, contractor, or agent shall be entitled to all relief necessary to make that employee, contractor, or agent whole, if that employee, contractor, or agent is discharged, demoted, suspended, threatened, harassed, or in any other manner discriminated against in the terms and conditions of employment because of lawful acts done by the employee, contractor, agent or associated others in furtherance of an action under this section or other efforts to stop [one] or more violations of this subchapter.

31 U.S.C. § 3730(h). Ms. Slack argues that this provision abrogates Eleventh Amendment immunity by authorizing lawsuits against employers that retaliate against whistleblowers without excluding employers that are state governmental entities. Opp. to Mot. Dismiss 6-12.[3] But WMATA challenges this view on two grounds.

         First, WMATA argues that the FCA authorizes a lawsuit only against a legal person, which excludes any state agency. Memo. ISO Mot. Dismiss 6-8; Reply ISO Mot. Dismiss 8. According to WMATA, the Supreme Court has already decided this question by holding that state agencies are not persons liable to suit under the FCA's qui tam provision. See Vt. Agency of Nat. Res. v. United States ex rel. Stevens, 529 U.S. 765, 787 (2000). But the FCA has other provisions authorizing other types of lawsuits. Indeed, Stevens noted that another provision of the FCA that enables the Attorney General to issue civil investigative demands explicitly includes states within its ambit. See Id. at 783-84. Unlike the text of the qui tam provision, nothing in the text of the whistleblower provision at issue here limits liability to legal persons. Compare 31 U.S.C. § 3730(b)(1) (authorizing qui tam lawsuits for violations of 31 U.S.C. § 3729, which establishes the liability of “any person” who performs a listed act) with 31 U.S.C. § 3730(h) (authorizing lawsuits for whistleblower retaliation without specifying who may be liable). WMATA's interpretation of the FCA lacks textual support and is at least in tension with the only interpretation of the whistleblower provision by a federal court of appeals that the parties have cited. See Wilkins v. St. Louis Hous. Auth., 314 F.3d 927, 931-32 (8th Cir. 2002) (holding that FCA's whistleblower provision applied to public employer).[4]

         Second, WMATA argues that, even if the FCA could apply to the states, it does not unequivocally express an intent to abrogate sovereign immunity. Reply ISO Mot. Dismiss at 9-11. WMATA is on the right track here. The FCA's whistleblower retaliation provision does not reference the states' sovereign immunity under the Eleventh Amendment. 31 U.S.C. § 3730(h); see also United States v. Tex. Tech. Univ., 171 F.3d 279, 295 (5th Cir. 1999) (holding that the Eleventh Amendment bars FCA whistleblower retaliation claim against public university); United States ex rel. King v. Univ. of Tex. Health Sci. Ctr.-Houston, 907 F.Supp.2d 846, 856 (S.D. Tex. 2012) (holding that the FCA's whistleblower retaliation provision “does not include a clear statement stripping state sovereign immunity”); United ...

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