Sanders v. Washington Metropolitan Area Transit Authority

• Decision Date: 29 May 1987
• Docket Number: No. 85-6237,85-6237
• Citation: 819 F.2d 1151
• Parties: 125 L.R.R.M. (BNA) 2772, 43 Empl. Prac. Dec. P 37,105, 260 U.S.App.D.C. 359, 2 Indiv.Empl.Rts.Cas. 287 Carl A. SANDERS, et al., Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1151

819 F.2d 1151

125 L.R.R.M. (BNA) 2772, 43 Empl. Prac. Dec. P

37,105,

260 U.S.App.D.C. 359,

2 Indiv.Empl.Rts.Cas. 287

Carl A. SANDERS, et al., Appellants, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.

No. 85-6237.

United States Court of Appeals District of Columbia Circuit.

Argued Jan. 30, 1987.

Decided May 29, 1987.

Before RUTH BADER GINSBURG and BUCKLEY, Circuit Judges, and DAVIS ^*, Circuit Judge, United States Court of Appeals for the Federal Circuit.

Opinion for the Court filed by Circuit Judge DAVIS.

DAVIS, Circuit Judge:

Sanders, et al. (Sanders) appeal the grant of summary judgment to Washington Metropolitan Area Transit Authority (WMATA). The District Court (Penn, J.) held that WMATA was immune from this suit. We affirm, partially on other grounds.

I.

In 1982 appellee WMATA promulgated rules requiring that employees who were involved in on-the-job accidents or unusual operating incidents be escorted by a supervisor to a designated medical facility to be tested for the presence of alcohol, illicit drugs, and controlled substances. Blood samples were taken to detect the presence of alcohol. Two urine tests were performed to test for illicit or controlled drugs: an EMIT test (enzyme immunoassay) and a GCMS test (gas chromatography-mass spectrometry). ¹

The eighteen appellants were bus or rail operator employees of WMATA, all members of the union (Local 689). All had been involved in on-the-job incidents and had submitted to the required blood and urine testing. Each was terminated from employment based on positive results of the post-incident medical examinations. Fourteen of the appellants filed grievances under the collective bargaining agreement challenging their termination. ² Eleven of them settled prior to final arbitration and were reinstated with back pay; three proceeded to full arbitration, two of whom were reinstated and granted partial back pay; one's grievance was wholly denied by the arbitrator and he was not reinstated. Four appellants failed to file grievances or pursue their remedies under the collective bargaining agreement. One of those four was a probationary employee and therefore not eligible to file under the collective bargaining agreement. ³

Appellants brought suit in the District Court claiming that they had been negligently discharged from their employment, and also alleging violation of the Fourth and Fourteenth Amendments, deprivation of their right to privacy, and violation of the Rehabilitation Act of 1973, ⁴ as well as violation of 42 U.S.C. Sec. 1983. ⁵ They requested compensatory damages, over and above the back pay granted in the grievance proceedings, in the amount of $500,000 each for injury arising from humiliation, embarrassment, lost wages, and damage to reputation.

WMATA moved for summary judgment, which the District Court granted, 652 F.Supp. 765. The court concluded that WMATA was entitled to invoke immunity under the Eleventh Amendment and the Compact (creating WMATA) because the activity involved was a governmental function as to which WMATA's immunity had not been waived.

II.

The parties dispute as to what is before us on this appeal. Appellants argue that their constitutional and Sec. 1983 points--that WMATA's rule on testing is invalid under the Fourth and Fourteenth Amendments because WMATA requires such testing without specific and objective facts giving reasonable suspicion or probable cause to test the particular employee--have been preserved, as well as the separate claims for negligent termination (because the tests were improperly conducted). WMATA counters that appellants have now abandoned their constitutional and statutory points (which were undoubtedly raised below) and that the negligent termination claims are precluded by the results of, or failure to follow, the grievance procedure.

It is true that appellants have not argued the merits of their constitutional and Sec. 1983 claims, but we think they have barely maintained their contentions in their brief (App.Br. 4, 14) when they say that they do not challenge WMATA's right "to conduct post-incident drug testing of employees suspected of drug or alcohol use " and testing of employees "suspected, on the basis of specific and objective facts, of drug or alcohol use" (emphasis added). We view this somewhat cryptic observation as sufficient to call upon us to reject WMATA's argument that the appellants' constitutional and Sec. 1983 claims have been abandoned. ⁶ Appellants' contention seems to be that testing could not be conducted unless there was sufficient reasonable suspicion or probable cause relating to the individual employee.

Because these claims are still in the case, we must consider the correctness of the District Court's holding that WMATA is immune from suit under the Compact on those contentions. ⁷ To that problem we now turn.

III.

WMATA was established by an interstate compact (Compact) entered into by Maryland, Virginia and the District of Columbia, which was consented to by Congress. Pub.L. No. 89-774, 80 Stat. 1324 (1966), as amended. ⁸ Section 80 of the Compact provides (D.C.Code.Ann. Sec. 1-2431 (1981)):

The Authority [WMATA] 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.

The District Court ruled that, if any tort was committed through the application to appellants of WMATA's drug-test rule, that injury "occurred in the performance of a governmental function."

In Morris v. WMATA, 781 F.2d 218 (D.C.Cir.1986), this court held that (a) the signatories to the Compact, together with Congress, had conferred their respective sovereign immunities (including immunity under the Eleventh Amendment) on WMATA, and those entities had then partially waived those immunities in Section 80 of the Compact; and also that (b) the question whether the function in question is "governmental" or "proprietary" under Section 80 is one of federal law.

The federal concept of a "governmental function" in connection with tort liability was defined authoritatively, prior to adoption of the Compact, in the leading case of Dalehite v. United States, 346 U.S. 15, 73 S.Ct. 956, 97 L.Ed. 1427 (1953), involving the Federal Tort Claims Act, 28 U.S.C. Sec. 2680 (1946). The Court stated that Congress did not contemplate "liability arising from acts of a governmental nature or function" (Id. at 28, 73 S.Ct. at 964) and that "[o]ne need only read Sec. 2680 [the Tort Claims Act] in its entirety to conclude that Congress exercised care to protect the Government from claims, however negligently caused, that affected the governmental functions." Id. at 32, 73 S.Ct. at 966 (emphasis added). The opinion adds that one way the Tort Claims Act effected that objective was by excepting "acts of discretion in the performance of governmental functions or duty 'whether or not the discretion involved be abused.' " Id. at 33, 73 S.Ct. at 966. And the Court added that "the discretion [is] of the executive or the administrator to act according to one's judgment of the best course, a concept of substantial historical ancestry in American law." Id. at 34, 73 S.Ct. at 967.

When the Court came to define the limits of this governmental discretion, the opinion said that it "includes more than the initiation of programs and activities. It also includes determinations made by executives or administrators in establishing plans, specifications, or schedules of operations [footnote omitted]. Where there is room for policy judgment and decision there is discretion." Id. at 35-36, 73 S.Ct. at 968. This language was recently repeated, and Dalehite reconfirmed, in United States v. Varig Airlines, 467 U.S. 797, 811-12, 104 S.Ct. 2755, 2763-64, 81 L.Ed.2d 660 (1984).

Varig Airlines, itself, says flatly that "[t]he discretionary function exception, embodied in the second clause of Sec. 2680(a), marks the boundary between Congress' willingness to impose tort liability upon the United States and its desire to protect certain governmental activities from exposure to suit by private individuals." 467 U.S. at 808, 104 S.Ct. at 2762 (emphasis added). Later in its opinion, the Court described the allegedly negligent acts attacked in Dalehite as "governmental duties " protected against suit under the Tort Claims Act. Id. at 811, 104 S.Ct. at 2763 (emphasis added). Finally, Varig Airlines stressed that "Congress wished to prevent judicial 'second-guessing' of legislative and administrative decisions grounded in social, economic, and political policy through the medium of an action in tort. By fashioning an exception for discretionary governmental functions, including regulatory activities, Congress took 'steps to protect the Government from liability that would seriously handicap efficient government operations.' " Id. at 814, 104 S.Ct. at 2765 (emphasis added) (quoting United States v. Muniz, 374 U.S. 150, 163, 83 S.Ct. 1850, 1858, 10 L.Ed.2d 805 (1963).

In granting immunity from tort actions to WMATA's "governmental" functions, the Compact seems to us to have accepted the Dalehite conception which we have just outlined. ⁹ In construing the Federal Tort Claims Act--the federal consent-to-suit on tort claims--Dalehite had given the definitive understanding of those torts as to which Congress had consented (in that Act) to actions against the Federal Government. The "governmental function" language of the Compact's Section 80 likewise concerns torts, and torts alone. The parallel is apparent, and it is especially appropriate to follow the Congressional understanding, in tort cases, of "governmental function." First, "Congress played a particularly active role in creating WMATA," initiated the Compact, and "expressly retain[...