DISTRICT OF COLUMBIA WASA v. DHA

• Decision Date: 27 May 2004
• Docket Number: No. 02-CV-1212.,02-CV-1212.
• Citation: 851 A.2d 410
• Court: D.C. Court of Appeals
• Parties: DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, appellant, v. DELON HAMPTON & ASSOCIATES, et al., Appellees.

851 A.2d 410

DISTRICT OF COLUMBIA WATER AND SEWER AUTHORITY, appellant, v. DELON HAMPTON & ASSOCIATES, et al., Appellees.

No. 02-CV-1212.

District of Columbia Court of Appeals.

Argued December 2, 2003.

Decided May 27, 2004.

Frederick A. Douglas, with whom Thomas D. Bridenbaugh, Washington, DC and Nicole C. Mason, were on the brief, for appellant.

Robert B. Wallace, with whom Byron J. Mitchell, Washington, DC, were on the brief, for appellee Delon Hampton & Associates.

O. Kevin Vincent, with whom Thomas B. Carr, Washington, DC, and Christopher T. Stidvent, were on the brief, for appellee Metcalf & Eddy, Inc.

Before TERRY and STEADMAN, Associate Judges, and KING, Senior Judge.

KING, Senior Judge:

The District of Columbia Water and Sewer Authority (WASA) appeals an order of the Superior Court of the District of Columbia dismissing, pursuant to Super. Ct. Civ. R. 12(b)(6), WASA's complaint for failure to state a claim upon which relief could be granted. We affirm.

I.

This case arises out of a dispute relating to a construction project at the Blue Plains Wastewater Treatment Plant involving the construction of piping and mechanical equipment, eight concrete basins and three sedimentation galleries. In January 1987, the District of Columbia, through the Department of Public Works, Water and Sewer Utility Administration ("WASUA"), entered into a contract with Delon Hampton & Associates ("DHA") in which DHA agreed to provide the District with professional engineering and consulting services related to the design and preparation of the construction project discussed above.

Subsequently, the District of Columbia, and later its successor entity WASA, claimed that the contractor and its various subcontractors had caused delays and other problems that caused a monetary loss. The complaint was filed November 5, 2001.

In defense of the claims raised against them, DHA asserted, inter alia, that all of the claims were time barred under D.C.Code § 12-301 (2001) because they were brought more than three years (in fact at least eight years) after the causes of action accrued. D.C.Code § 12-301 provides the various time limitations applicable to causes of action commenced in the District of Columbia, including a three-year limit for damages in the circumstances presented here. It also provides that the time limitations do not apply to "actions brought by the District of Columbia government." D.C.Code § 12-301. The trial court, basing its decision on our holding in Dingwall v. District of Columbia Water & Sewer Auth., 800 A.2d 686 (D.C.2002) (en banc), ruled that the statute of limitations exemption accorded to the District of Columbia government by § 12-301 did not apply to WASA.

In Dingwall, we considered the question whether D.C.Code § 12-309 applies when suits are brought against WASA. D.C.Code § 12-309 provides that an action may not be maintained against the District of Columbia unless notice is given within six months after the injury or damage was sustained.¹ We concluded that WASA was not included within § 12-309, holding that WASA is an entity distinct from the District of Columbia. This decision adopted, in part, the division opinion in Dingwall v. District of Columbia Water & Sewer Auth., 766 A.2d 974 (D.C.2001), where we observed:

WASA was established in 1996 "as an independent authority of the District government." D.C.Code § 43-1672 (1998). It is "a corporate body, created to effectuate certain public purposes, that has a separate legal existence within the District government." Id. WASA is "sui juris"; i.e., it has the power "to sue or be sued" in its own name. D.C.Code § 43-1673(1). WASA is also authorized by law to enter into contracts with, inter alia, "the District, the United States, Maryland, or Virginia, or their political subdivisions." D.C.Code § 43-1673(10) (emphasis added). WASA's authority to enter into a contract with the District is inconsistent with the notion that WASA is indistinguishable from the District; an entity does not contract with itself.

Id. at 977.²

II.

WASA argues that it should receive the protection from the statute of limitations because § 12-301 uses the term "District of Columbia government" while Dingwall only construed § 12-309, which uses the term "District of Columbia." It maintains that the differences in terminology are significant and controlling with WASA being included within the former term but not the latter. DHA argues, however, that because the Dingwall court held that WASA was not included within the term "District of Columbia" in § 12-309, the same result should follow with respect to § 12-301. Thus the exemption from the statute of limitations accorded to the District of Columbia government would not be available to WASA.

It is not apparent from the face of the statute whether "District of Columbia" and "the District of Columbia government" have the same meaning or whether WASA is included within the latter. The two terms appear throughout the Code with no indication whether they are interchangeable, or whether they have different meanings in different contexts. Because there is ambiguity created by the use of different terms in different parts of the statute, we will examine, as we ordinarily do, other sources including the legislative history. Jackson v. United States, 819 A.2d 963, 965 (D.C.2003).

Sections 12-301 and 12-309 (and the entire § 12-300 series) were codified into positive law by Congress on December 23, 1963. See P.L. No. 88-241, 77 Stat. 510-11 (1963). While the original language of § 12-309 survives to this date, the statute of limitations exemption for the "District of Columbia government" in § 12-301 was not part of the original statute.³ The § 12-300 series deals generally with the time limitations applicable to civil actions brought in the District of Columbia. For example, § 12-309 deals with the timing for pre-suit notice that is required for suits against the District of Columbia. On the other hand, the original version of § 12-301 contained eight different subsections which set out the specific limitations periods for various types of suits and actions, ranging from one to fifteen years. It did not include, however, any provision exempting the District of Columbia government from the application of those time limits.

While the original enactment of § 12-301 did not contain such a provision, the exemption of certain government entities entirely from a generally applicable statute of limitation would have been consistent with the common law doctrine of "nullum tempus occurit regi" ("no time runs against the sovereign"), which applies to suits brought by sovereign entities when they are suing to enforce public rights. See District of Columbia v. Owens-Corning Fiberglas Corp., 572 A.2d 394, 401 (D.C.1989)

("Owens-Corning"). The prevailing modern view in the United States is that a state government is entitled to the nullum tempus exemption as a matter of common law.⁴ The District of Columbia, however, is not, nor has it ever been considered, a state of the United States. Indeed, in 1889 the Supreme Court squarely held that because the District was not a state, it was not entitled to the protection of nullum tempus. Metropolitan Railroad Co. v. District of Columbia, 132 U.S. 1, 10 S.Ct. 19, 33 L.Ed. 231 (1889).

What was then thought (although erroneously, as we discuss, infra) to be the inapplicability of nullum tempus to the District was cited in the 1980's to bar the District from pursuing asbestos cases brought on behalf of the public.⁵ In response, the Council of the District of Columbia enacted the "District of Columbia Statute of Limitations Amendment Act of 1986," which became effective February 28, 1987. In presenting the draft bill to the Council for consideration the Mayor attached an extensive analysis of common-law background and stated that a purpose of the draft bill was to "make clear that the limitations provisions of § 12-301 and § 12-310⁶ of the D.C.Code do not apply to the District government when it sues to enforce public rights." COUNCIL OF THE DISTRICT OF COLUMBIA, LETTER FROM MAYOR MARION BARRY, JR., ON THE "DISTRICT OF COLUMBIA STATUTE OF LIMITATIONS AMENDMENT ACT OF 1986" (July 16, 1986) (emphasis added). Likewise, in the Report of the Committee on the Judiciary, the statement for "Background and Need" also recited the common-law background and stated that the proposed law "would expressly make the statute of limitations provisions inapplicable to suits filed by the District of Columbia when a public right is asserted." COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, REPORT ON BILL 6-510, THE "DISTRICT OF COLUMBIA STATUTE OF LIMITATIONS AMENDMENT ACT OF 1986" (Nov. 19, 1986) (hereinafter "Council Report") at 2 (emphasis added). The comments of the acting Corporation Counsel added that the proposed bill "would greatly increase the ability of the District to protect public rights in the courts." COUNCIL OF THE DISTRICT OF COLUMBIA, COMMITTEE ON THE JUDICIARY, COMMENTS OF JAMES MURRAY, ACTING CORPORATION COUNSEL, ON BILL 6-510, THE "DISTRICT OF COLUMBIA STATUTE OF LIMITATIONS AMENDMENT ACT OF 1986" (OCT. 15, 1986) (emphasis added). Furthermore, the statement on "impact on existing laws" stated that the proposed amendment would "expand the current statute of limitations by adding a new provision that the District government shall be immune from the prescribed statute of limitations if a public right is asserted." Council Report at 4 (emphasis added).⁷

Our reading of the legislative history as recited above leads us to conclude that an underlying aim of the Council was to ensure that the District received, at the least, the benefit of the common law principle of "nullum tempus," which applies to the sovereign that enforces public rights. That principle was and is consistent with the prevailing view in the state courts. Therefore, in deciding what juridical entities the Council...