781 F.2d 218 (D.C. Cir. 1986), 84-5306, Morris v. Washington Metropolitan Area Transit Authority

Docket Nº:84-5306.
Citation:781 F.2d 218
Party Name:Alfred MORRIS, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
Case Date:January 17, 1986
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 218

781 F.2d 218 (D.C. Cir. 1986)

Alfred MORRIS, Appellant,

v.

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.

No. 84-5306.

United States Court of Appeals, District of Columbia Circuit

January 17, 1986

        Argued Feb. 12, 1985.

        As Amended .

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        Appeal from the United States District Court for the District of Columbia (Civil Action No. 80-01307).

        David J. Ontell, with whom Peg Shaw, Washington, D.C., was on brief for appellant.

        Walter A. Smith, Jr., with whom Vincent H. Cohen, Robert B. Cave, Susan M. Hoffman and Keith R. Fisher, Washington, D.C., were on brief for appellee.

        Arthur B. Spitzer, Elizabeth Symonds, Richard A. Frank and Michael E. Fine, Washington, D.C., were on brief for amicus curiae American Civil Liberties Union Fund of the National Capital Area, urging reversal.

        John J. Beall, Jr., Richmond, Va., was on brief for amicus curiae State of Maryland, et al., urging affirmance.

        Before WRIGHT, BORK and SCALIA, Circuit Judges.

        Opinion for the Court filed by Circuit Judge BORK.

        Concurring opinion filed by Circuit Judge J. SKELLY WRIGHT.

        BORK, Circuit Judge:

        Alfred Morris appeals the district court's dismissal of his complaint against the Washington Metropolitan Transit Authority ("WMATA"). See Morris v. WMATA, 583 F.Supp. 1522 (D.D.C.1984). We affirm the dismissal because, as the district court held, WMATA's limited sovereign immunity prevents liability from attaching in this case.

       I.

        On November 6, 1966, Congress consented to, and enacted for the District of Columbia, a compact whose signatories were Maryland, Virginia, and the District of Columbia. See Washington Metropolitan Area Transit Authority Compact, Pub.L. No. 89-774, 80 Stat. 1324 (1966) ("WMATA Compact"). The Compact created WMATA to operate a mass transit system for the District of Columbia and the surrounding suburban areas of Maryland and Virginia. Section 76 of the Compact, as originally enacted, see 80 Stat. 1349, and as amended in 1976 by Pub.L. No. 94-306, 90 Stat. 672, authorizes WMATA to maintain a Transit Police Force.

        Alfred Morris was employed by WMATA as a Transit Police officer from November 4, 1974, until his discharge, effective October 22, 1976. Morris alleged that WMATA discharged him in retaliation for his past statements asserting racial discrimination against himself and other black officers by the Transit Police Force. Morris' amended complaint claimed that his discharge from the Transit Police Force violated 42 U.S.C. Sec. 1983 (1982) and the first and fourteenth amendments. 1 Morris sought compensatory and punitive damages. The district court concluded that it lacked jurisdiction since the eleventh amendment barred appellant's claim against WMATA.

       II.

        WMATA's sovereign immunity exists because the signatories have successfully conferred their respective sovereign immunities upon it. Congress has power to legislate for the District of Columbia and to create an instrumentality that is immune from suit. Maryland and Virginia have

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immunity under the eleventh amendment and each can confer that immunity upon instrumentalities of the state. It is clear that each of the three signatories attempted to confer its sovereign immunity upon WMATA. We think they succeeded and that the partial waiver of that immunity in the Compact does not extend to this case. We address the question of waiver first.

        Section 80 of the WMATA Compact provides in pertinent part:

        The Authority shall be liable for its contracts and for its torts and those of its Directors, officers, employees and agent 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.

        80 Stat. 1350. The threshold question is whether WMATA's operation of the Transit Police Force constitutes a governmental or a proprietary function within the terms of the Compact. This is a question of federal law since "congressional consent transforms an interstate compact within [the Compact] Clause into a law of the United States." Cuyler v. Adams, 449 U.S. 433, 438, 101 S.Ct. 703, 66 L.Ed.2d 641 (1980).

        The principle is well-established that the operation of a police force is a governmental rather than a proprietary function. " 'If the operation of a police force is not a governmental function, then a governmental function may not exist.' " Martin v. WMATA, 667 F.2d 435, 436 (4th Cir.1981) (quoting Bryant v. Mullins, 347 F.Supp. 1282, 1286 (W.D.Va.1972) and citing McQuillin, The Law of Municipal Corporations Secs. 53.29, 53.30, 53.51 (3d ed. 1977)); see Capital Transit Co. v. District of Columbia, 225 F.2d 38, 41 (D.C.Cir.1955). Morris does not seriously contest this point since he stated below that he "agrees that operating a police force is a governmental function." 2 Morris' Record Excerpts ("R.E.") at 55. The narrow question is whether operating a police force includes the promulgation and enforcement of the police regulations here involved. We hold that it does. In this case, Morris' notice of dismissal cited seventeen violations of police regulations during twenty-three months of service. R.E. at 6. These violations included the loss of police equipment such as Morris' baton, handcuffs and police cap as well as multiple instances of absence from duty without leave and unexcused tardiness. See Trial Transcript of Nov. 14, 1980 at 297-405. After five instances of unjustified tardiness, Morris was sent a letter of official reprimand which admonished: "You should ... be advised that continued instances of tardiness shall result in severe disciplinary action being taken even to the extent that could cause your termination from the Metro Transit Police." Id. at 315-16. Less than two weeks later, Morris was cited again for unexcused tardiness. Id. at 317. Regulations prohibiting unexcused absence from duty and tardiness as well as those requiring officers to maintain possession of basic police equipment are essential for the provision of effective and continuous police protection. Given the regulations enforced in this case, there is no question that WMATA's dismissal of Morris occurred in the performance of a governmental function.

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        There is also no doubt that section 80 of the Compact indicates an intention by the signatories to avoid tort liability arising out of the performance of a governmental function.

        Morris argues, however, that section 81 of the WMATA Compact constitutes a complete waiver of sovereign immunity, see Brief for Appellant at 22-23, and that section 80 relates only to the existence or nonexistence of a cause of action, see id. at 27-28. We fail to see that this distinction, even assuming it to be valid, makes a difference in this case. Morris argues that he has been deprived not of a court with jurisdiction but only of a remedy. See id. at 27. This, in turn, is said to mean that he may obtain a factual determination whether WMATA's action was in performance of a governmental function. But just such a determination is also required before sovereign immunity will attach. Here, the district court held on undisputed facts that WMATA acted in the performance of a governmental function and we have upheld that conclusion. Whether section 80 deprives the district court of jurisdiction or deprives Morris of a remedy, the result is that Morris' complaint was properly dismissed.

        In any event, we think Morris misinterprets the Compact. "In deciding whether a State has waived its constitutional protection under the Eleventh Amendment, we will find waiver only where stated 'by the most express language or by such overwhelming implications from the test as [will] leave no room for any other reasonable construction.' " Edelman v. Jordan, 415 U.S. 651, 673, 94 S.Ct. 1347, 1361, 39 L.Ed.2d 662 (1974) (quoting Murray v. Wilson Distilling Co., 213 U.S. 151, 171, 29 S.Ct. 458, 464, 53 L.Ed. 742 (1909)). Sections 80 and 81 should read as parts of a coherent whole. Section 80 provides that WMATA "shall be liable for its contracts and for its torts ... committed in the conduct of any proprietary function, ... but shall not be liable for any torts occurring in the performance of a governmental function." 80 Stat. 1350. Section 81 provides that "[t]he United States District Courts shall have original jurisdiction, concurrent with the Courts of Maryland and Virginia, of all actions brought by or against the Authority." Id. We agree with the district court that "[t]he reasonable construction of the two sections, read together, is that WMATA has consented to be sued for torts committed in the performance of proprietary functions and such suits may be brought in United States District Courts," but that "WMATA has expressly retained its immunity from suit for torts committed in the performance of governmental functions." 583 F.Supp. at 1525 (emphasis in original). We can think of no intelligible purpose the signatories might have served by destroying any cause of action for torts committed in the performance of a governmental function and subsequently waiving sovereign immunity for just such torts. Yet it is this incoherent intention that Morris' reading requires. We find the district court's reading much more natural.

        The last sentence of section 80 reinforces our conclusion that section 80 was meant to relate to sovereign immunity rather than to the existence of a cause of action. That sentence provides: "Nothing contained in this [Compact] shall be construed as a waiver by the District of Columbia, Maryland, Virginia and the counties...

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