232 F.3d 917 (D.C. Cir. 2000)
Hullon Griggs, Appelleev.Washington Metropolitan Area Transit Authority and District of Columbia Metropolitan Police, AppelleesDouglas S. Haymans, Appellant
No. 00-7108
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 23, 2000Decided December 1, 2000

Appeal from the United States District Court for the District of Columbia(No. 99cv01552)
Gerard J. Stief, Associate General Counsel, Washington  Metropolitan Area Transit Authority, argued the cause for  appellant.  With him on the briefs were Cheryl C. Burke, General Counsel, and Robert J. Kniaz, Deputy General Counsel.
Kim M. DiGiovanni argued the cause and filed the brief  for appellee Hullon Griggs.
Before:  Edwards, Chief Judge, Rogers and Garland, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge:


1
In this interlocutory appeal, the  court addresses whether an employee of the Washington  Metropolitan Area Transit Authority ("WMATA") is absolutely immune from suit for negligent conduct arising during the  course of making an arrest.  As a result of his arrest, Hullon  Griggs sued WMATA and Metro Transit Police Officer Douglas Haymans, as well as the D.C. Metropolitan Police Department, alleging in part that Officer Haymans negligently failed  to control his police dog in the course of arresting Griggs. The district court denied Officer Haymans' motion to dismiss  the complaint on the ground of absolute immunity, and,  alternatively, for summary judgment on the ground that the  complaint was barred by the one-year statute of limitations  for assault and battery.  Because the WMATA Compact, D.C.  Code S 1-2431 et seq. (1981), provides that Officer Haymans'  conduct in arresting Griggs was subject to the laws applicable  to a member of the D.C. Metropolitan Police Department, and  because Officer Haymans' statute of limitations defense is  meritless, we affirm.

I.

2
According to the complaint,1 the D.C. Metropolitan Police  Department contacted the WMATA Transit Police in the  early morning hours of May 26, 1996, for the assistance of a  canine unit in responding to a "burglary two in progress" at the Madison Grocery store in Northwest, Washington, D.C. Metro Transit Police Officer Douglas Haymans and a police  dog named "Buddy" responded to the scene.  Upon their  arrival, Officer Haymans released the dog into the Madison  Grocery to search for the suspect.  The dog located Hullon  Griggs, who was asleep.  When Griggs awoke, the dog's paws  were on his head.  As Griggs attempted to push the dog  away, the dog began biting Griggs' right arm.


3
At this point, Officer Haymans entered the grocery store  and ordered Griggs to stand and place his hands on his head. Griggs explained to Officer Haymans that the dog was biting  him while he was on the ground, and that his efforts to push  the dog away had failed.  Officer Haymans pulled the dog  away from Griggs and again ordered him to stand and place  his hands over his head.  Griggs complied immediately.  Officer Haymans then released the dog and commanded him to  attack Griggs.  Griggs again made attempts to push the dog  away, but the dog continued to attack him, inflicting multiple,  serious wounds on Griggs' arms, legs, and torso.  Instead of  commanding the dog to stop, Officer Haymans ordered  Griggs to stay still and allowed the dog to continue to attack  him.  Then, Officer Haymans ordered Griggs todrop to his  knees and place his hands on his head.  Griggs complied, and  Officer Haymans handcuffed him and pushed his head to the  ground, during which time the dog continued to attack  Griggs.  Officer Haymans finally commanded the dog to stop  his attacks.  As Officer Haymans picked up Griggs, Griggs  complained that the dog had injured him.


4
Officer Haymans then took Griggs outside of the grocery  store, at which point a D.C. Metropolitan Police officer asked  what had occurred inside.  Officer Haymans responded that  the dog "had not worked out in a while" and "he needed it."Griggs was transported to the Fourth District Headquarters  by D.C. Metropolitan Police where Officer Haymans photographed Griggs' injuries and commented that the dog "got a  good workout."  Griggs was thereafter taken to D.C. General  Hospital for treatment of the dog bites and then to the D.C.  Jail for processing for unlawful entry, attempted theft, and  burglary.  Later, on two separate occasions while on his way to court, Griggs fainted and was transported to D.C. General  Hospital.  After his arraignment and release, Griggs continued to suffer from the injuries inflicted by the dog.  On May  31, 1996, he called "911" and was transported to Howard  County General Hospital where he was admitted for "infected  hematoma secondary to dog bite" and where he remained  hospitalized until June 5, 1996.


5
On May 24, 1999, almost three years later, Griggs filed a  complaint in the D.C. Superior Court alleging negligence by  WMATA and Officer Haymans for failure to control the police  dog and by the D.C. Metropolitan Police Department for  improper supervision.  On June 15, 1999, the case was removed to the United States district court pursuant to § 81 of  the Compact.  See D.C. Code S 1-2431(81) (1981).  As relevant here, WMATA and Officer Haymans moved to dismiss  the complaint on the ground of absolute immunity under S 80  of the Compact for claims involving governmental functions,  see id. S 1-2431(80), and alternatively, for summary judgment  on the ground that the complaint was barred by the one-year  statute of limitations for assault and battery.  See id.  § 12-301(4).  The district court denied the motion.  On reconsideration, the district court granted WMATA's motion on  the ground of absolute immunity, citing Burkhart v. WMATA, 112 F.3d 1207, 1216-17 (D.C. Cir. 1997), but denied  Officer Haymans' motion for reconsideration.

II.

6
On appeal, Officer Haymans contends that the district  court erred in rejecting his claim of absolute immunity because he was acting at all times within the scope of his  employment and because his police activity constituted a  "quintessentially governmental" function.  He relies on the  statement in Beebe v. WMATA, 129 F.3d 1283 (D.C. Cir.  1997), that WMATA employees "enjoy absolute immunity  from state-law tort actions when the conduct at issue falls  'within the scope of their official duties and the conduct is  discretionary in nature.' "  Id. at 1289.  Officer Haymans also  contends that the district court erred in ruling that the complaint was not barred under D.C. Code § 12-301(4),  which provides a one-year statute of limitations for excessive  force claims.  Because Officer Haymans' statute of limitations  contention is meritless inasmuch as Griggs' complaint sounds  in negligence for which there is a three-year statute of  limitations, see id. § 12-301(8), as well as in intentional tort  for which there is a one-year statute of limitations, see  McCracken v. Walls-Kaufman, 717 A.2d 346, 350-53 (D.C.  1998);  Etheredge v. District of Columbia, 635 A.2d 908, 918  (D.C. 1993),2 we turn to Officer Haymans' immunity claim.


7
In Beebe, the court addressed whether WMATA employees  have immunity when WMATA itself is immune because the  alleged tort occurred during the exercise of governmental or  discretionary functions.  See Beebe, 129 F.3d at 1288.  Beebe,  a former WMATA employee, filed suit against his former  supervisors for, among other things, breach of contract and  constructive discharge, fraud, gross negligence, and defamation, in connection with their implementation of an office  reorganization that expanded Beebe's responsibilities.  See  id. at 1286.  As a result of his unsatisfactory performance in  the new position, his supervisors eliminated that position and  created a new equally-ranked position.  See id.  Beebe was  not selected for that position, however, but was instead  selected for a lesser position, causing his office ranking to  drop.  See id. Because § 80 of the Compact, which provides  immunity to WMATA only where torts are committed in the  course of governmental functions, is silent on the scope of  WMATA employees' immunity when WMATA itself is immune, the court looked to the federal common law.  See id. at  1288.  Applying the distinction between discretionary and  ministerial functions, as articulated in Westfall v. Erwin, 484  U.S. 292 (1988), the court held that the WMATA supervisors,  whom Beebe did not allege had acted outside the scope of  their duties, were immune from suit insofar as their actions in implementing the office reorganization, "lying at the core of  [their] official responsibilities," were discretionary in nature. Beebe, 129 F.3d at 1289.  The court also observed that:


8
not all intentional or malicious torts committed in the normal course of employment necessarily fall within the scope of official duties.  Officials "exceed the outer perimeters of their responsibilities, and act manifestly be-yond their line of duty," for example, "when they resortto physical force to compel the obedience of their managerial subordinates ... or when they use false threats ofcriminal charges to coerce an employee into resigning.


9
Id. (quoting McKinney v. Whitfield, 736 F.2d 766, 771-72  (D.C. Cir. 1984), and citing Bishop v. Tice, 622 F.2d 349, 359  (8th Cir. 1980)).


10
The district court applied Beebe's instruction to look to  federal common law when it concluded, under West-fall, that  although Griggs conceded that Officer Haymans was acting  within the scope of his employment, an individual transit  officer's conduct in making an arrest is a ministerial function  for which he may be held liable.  The district court also  looked to Dellums v. Powell, 566 F.2d 216 (D.C. Cir. 1977).In Dellums the court observed that Carter v. Carlson, 447  F.2d 358, 366 (D.C. Cir. 1971), rev'd in part on other grounds  sub nom. District of Columbia v. Carter, 409 U.S. 418 (1973),  as well as Wade v. District of Columbia, 310 A.2d 857, 860  (D.C. 1973), "recognized that the arrest function involved  discretion in the ordinary sense but not discretion in the  policymaking sense, which is the interest protected by municipal immunity."  Dellums, 566 F.2d at 223 n.25.  The court  had explained in Carter, that "the law is clear that an  arresting officer has no immunity from suit for torts committed in the course of making an arrest", 447 F.2d at 362-63,  even though "a high degree of discretion is clearly involved in  deciding when and how to make an arrest...."3  Id. at 363  n.9.  Accordingly, the district court reasoned that, absent  federal common law dictating otherwise, "it is inappropriate  to conflate discretionary police activity, from which liability  WMATA is shielded, with ministerial arrest activity, from  which liability individual police officers are not necessarily  shielded."  The district court ruled that "[t]he facts as alleged  [in the complaint] supportthe inference that [Officer Haymans] may have crossed the line from official duty to illicit  brutality or otherwise performed negligently in his supervision and use of [the dog]," and thus Officer Haymans was not  entitled to absolute immunity.4


11
The correctness of the district court's legal conclusion is  demonstrated upon consideration of the WMATA Compact  itself.  That Compact, executed by Virginia, Maryland, and  the District of Columbia, and approved by Congress in 1966,  originally gave the WMATA transit police very limited police  powers, reserving the vast majority of police work for each  member jurisdictions' own police forces.  See D.C. Code  S 1-1431(76) (1967);  see also Hall v. WMATA, 468 A.2d 970,  971 (D.C. 1983).  However, in 1976 Congress amended S 76,  expanding the police powers of the transit police so that they  supplemented area police forces and supervised bus and rail  service.  Section 76(b) provides in relevant part that:


12
[a] member of the Metro Transit Police shall have the same powers, including the power of arrest, and shall be subject to the same limitations, including regulatory limitations, in performance of his or her duties as a memberof the duly constituted police force of the political subdivision in which the Metro Transit Police member is engaged in the performance of his or her duties.


13
D.C. Code S 1-2431(76(b)) (1981).  Thus, in the District of  Columbia, a Metro Transit Police officer engaged in a criminal investigation and an arrest has the same powers and  limitations as a member of the District of Columbia Metropolitan Police Department, and consequently has only qualified  immunity for his torts.


14
The court explained in Biscoe v. Arlington County, 738  F.2d 1352, 1362 (D.C. Cir. 1984), that in the District of  Columbia, "both official and governmental immunity depend  on the ministerial-discretionary dichotomy."  A ministerial  function is one that "connotes the execution of policy as  distinct from its formulation."  Id. (quoting Elgin v. District  of Columbia, 337 F.2d 152, 154-55 (D.C. Cir. 1964)).  Thus,  conducting felony stops and felony pursuits are ministerial,  not discretionary, acts because they are day-to-day operational matters, not matters related to planning and policy.  See  id.  A police officer's conduct in connection with conducting  an investigation with an eye toward making an arrest is  ministerial, even if his on-the-scene decision to act originally,  e.g., to stop a car, is discretionary.  See id. In reaching this  conclusion, the court noted that a police officer is constrained  by both regulations and clearly established policies and standards such that there is no need to be concerned that tort  liability for such actions would "pose threats to the quality  and efficiency of government."  Id. (quoting Spencer v. General Hosp. of D.C., 425 F.2d 479, 482 (D.C. Cir. 1969)).  In  contrast, a discretionary act is one for which an officer is  immune:  "If policy considerations were involved and no statutory or regulatory requirements limited the exercise of  policy discretion, ... immunity would bar suit."  Id. at 1362  (quoting Chandler v. District of Columbia, 404 A.2d 964, 966  (D.C. 1979)).  Finally, the court explained that:


15
there are certain decisions made in the exercise of the discretionary functions of government for which there is no reason to believe a jury would render a sounder decision than those officials chosen, qualified, and pre-pared to make them.  It is these that are labeled "discretionary" and which constitute policy decisions deemed immune from suit becausethere is no legal standard by which a judge or jury could gauge their arbitrariness and capriciousness or lack thereof.


16
Id. at 1363 (quoting Chandler v. District of Columbia, 404  A.2d at 966).


17
A member of the D.C. Metropolitan Police Department,  therefore, is not absolutely immune from suit for his tortious  conduct.  See McCarthy v. Kliendeinst, 741 F.2d 1406, 1409  (D.C. Cir. 1984) (citing Apton v. Wilson, 506 F.2d 83, 90-95  (D.C. Cir. 1974)).  It necessarily follows that while § 80 of the  Compact cloaks WMATA itself with absolute immunity for  torts arising in the exercise of governmental functions, under  § 76(b) of the Compact, WMATA's Metro Transit Police  officers, like members of the D.C. Metropolitan Police Department, are not able to invoke such absolute immunity as a  bar to suit for their torts in the District of Columbia.  Officer  Haymans can find no solace in cases allowing a Metro Transit  Police officer to invoke absolute immunity for alleged false  arrest, false imprisonment, and malicious prosecution when  the officer had probable cause to make the arrest and acted  with "a good faith, reasonable belief" that the arrestee had  violated the law.  Stebbins v. WMATA, 495 A.2d 741, 743  (D.C. 1985) (quoting Gabrou v. May Dep't Stores Co., 462  A.2d 1102, 1104 (D.C. 1983)); see also Dant v. District of  Columbia, 829 F.2d 69, 75 (D.C. Cir. 1987); McCarthy, 741  F.2d at 1413.  Even though an officer in that circumstance is  engaged in governmental functions and is acting within the  scope of his responsibilities, the right to invoke absolute  immunity evaporates when the conduct is "manifestly excessive," using means to accomplish one's responsibilities that  are "beyond the outer perimeter of [one's] authority."McKinney, 736 F.2d at 770-71 (and cases cited therein).While Griggs' complaint does not expressly allege in haec  verba that Officer Haymans' conduct exceeded the "outer  perimeters" of his official duties, Beebe, 129 F.3d at 1289, as  the district court noted, the factual allegations in the complaint are to the same effect.  Griggs has alleged that Officer  Haymans not only failed properly to train his "vicious" dog,  but he failed to control his dog, instead commanding the dog  to attack Griggs after Griggs had complied with Officer Haymans' order to stand and place his hands on his head, and  failing to command the dog to cease its attack.  The use of a  police dog to locate a suspected burglar is far different from  the use of a police dog to attack a suspected burglar who has  submitted to police authority.


18
Officer Haymans has two responses, neither of which is  availing.  First, he contends that reliance on Dellums and  Carter is misplaced because those cases involved "the discretionary standard associated with both the Federal Tort  Claims Act and District of Columbia law, and not the broader  governmental/proprietary standard mandated by § 80."  Officer Haymans, however, misreads the court's recent decision  in Beebe.  Although the Federal Tort Claims Act was not at  issue, the court in Beebe drew upon the precedent established  by the Act in addressing § 80 of the WMATA Compact and  endorsed the discretionary/ministerial dichotomy employed in  Dellums and Carter.  See Beebe, 129 F.3d at 1287 (citing  Burkhart, 112 F.3d at 1216).  The district court, therefore,  could properly invoke the distinction long-recognized by the  court, see McKinney, 736 F.2d at 769-71, between discretionary activity illustrated in Beebe, that cannot result in tort  liability for WMATA, and ministerial arrest activity illustrated in Carter, that may result in tort liability for a Metro  Transit Police officer.  Moreover, unlike the situation confronting the court in Beebe, where the Compact was silent as  to the immunity of the WMATA employees being sued, the  district court was instructed by Congress in § 76(b) of the  Compact to look to the law applicable to D.C. Metropolitan  Police officers in determining whether Officer Haymans was  cloaked with the same immunity as WMATA.


19
Second, contrary to Officer Haymans' contention at oral  argument, United States v. Gaubert, 499 U.S. 315 (1991), does  not undermine the propriety of drawing distinctions between  types of discretionary conduct.  In Gaubert, the Supreme  Court held that for purposes of the Federal Tort Claims Act,  discretionary activity can include operational activities and is  "not confined to the policy or planning level."  499 U.S. at  325.  Thus, a suit against federal bank officials for negligently  advising and overseeing the operations of a thrift institution was barred by immunity.  See id. at 333.  This result followed, the Court said, because the bank officials were authorized by statute to provide advice and oversight in a manner  that left room for the exercise of political, social, or economic  choice.  See id. at 324-26.  While the determination of the  nature of an activity under the Compact is a question "of  federal law," Burkhart, 112 F.3d at 1216 (quoting Sanders v.  WMATA, 819 F.2d 1151, 1154 (D.C. Cir. 1987)), under § 76(b)  of the Compact Officer Haymans was vested only with the  powers and limitations of a D.C. Metropolitan Police officer  when he responded to a call for assistance from the D.C.  Metropolitan Police Department, and thus the discretionary/ministerial distinctions noted in Biscoe, 738 F.2d at 1363,  continue to apply.


20
Accordingly, we affirm the district court's order denying  Officer Haymans' motion to dismiss the complaint on absolute  immunity and statute of limitations grounds.5



Notes:


1
  In reviewing the denial of a motion to dismiss on the ground  of immunity, the court must treat the allegations of the complaint as  true.  See United States v. Gaubert, 499 U.S. 315, 327 (1991) (citing  Berkovitz v. United States, 486 U.S. 531, 540 (1988));  Schuler v.  United States, 617 F.2d 605, 608 (D.C. Cir. 1979).


2
 The statute of limitations contention is properly before the court  in this interlocutory appeal.  See Kiska Constr. Corp.-U.S.A. v.  WMATA, 167 F.3d 608, 611 (D.C. Cir. 1999);  Gilda Marx, Inc. v.  Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir. 1996).


3
  In Carter, the plaintiff sued a member of the D.C. Metropolitan Police Department for assault and battery when the officer  allegedly beat him after arresting him without probable cause.  See  447 F.2d at 360-61.


4
  In originally denying the motion to dismiss on the ground of  immunity, the district court noted that "the parties have not proffered evidence of the standard of permissible police action for the  court to determine, as a matter of law, whether Officer Haymans  acted beyond the bounds of his official duties."  Assuming the  parties had done so, the district court concluded that the allegations  in the complaint, if true, would "preclude dismissal at this phase [of  the case]."


5
  Because the appeal involves only the issue of Officer Haymans' entitlement to absolute immunity, we do not reach the issue  of any claim that he may have to qualified immunity.


