                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA




  CORNIELIUS FELDER,
  As Administrator of the Estate of Harold
  Ingram,

                                Plaintiff,
        v.                                              Civil Action No. 14-01905 (TFH)

  WMATA,

                                 Defendant.



                                  MEMORANDUM OPINION

       Pending before the Court is Defendant Washington Metropolitan Area Transit

Authority’s Motion to Dismiss Plaintiff’s Complaint In Part [ECF No. 7], which seeks the

dismissal of the plaintiff’s causes of action for (1) negligent training and instruction and

(2) compensatory damages pursuant to the Virginia Wrongful Death Act. Upon consideration of

the legal briefs filed by the parties, the Court finds that oral arguments are not necessary and, for

the reasons that follow, it will grant the motion in part with respect to the claim for negligent

training and instruction. A ruling regarding the motion to dismiss the claim for compensatory

damages pursuant to the Virginia Wrongful Death Act will be the subject of a memorandum

opinion that will be issued separately.




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                     BACKGROUND AND PROCEDURAL POSTURE

       According to the allegations contained in the plaintiff’s Complaint, on October 6, 2013,

Harold Ingram was working for a Washington Metropolitan Area Transit Authority

(“WMATA”) subcontractor on a project to replace part of the Red Line metro rail track when he

was fatally struck by a section of rail that was suspended from a Pettibone Speed Swing being

operated by a WMATA employee. Compl. ¶¶ 5-8, 13, 29 [ECF No. 7-2]. On October 17, 2014,

this lawsuit was commenced in the D.C. Superior Court by Cornelius Felder, who is Harold

Ingram’s son and the personal representative for Mr. Ingram’s estate. Compl. ¶¶ 2, 4

(identifying Cornelius Felder). Although the Complaint fails to set forth separately-titled counts,

it appears to allege the following causes of action: (1) negligence by the WMATA employee

who operated the Speed Swing, (2) negligent failure to train and instruct the WMATA employee

who operated the Speed Swing, (3) negligent failure to inspect, maintain, and detect a defect in a

hydraulic fluid hose that ruptured, (4) and negligent failure to conduct a “proper” job briefing at

the site of the accident. Compl. ¶¶ 31-48.

       In accordance with Section 81 of the Washington Metropolitan Area Transit Regulation

Compact (the “WMATA Compact”), which provides that federal district courts shall have

concurrent original jurisdiction over suits against WMATA, D.C. Code § 9-1107.01(81) (West

2014), WMATA removed the case to this Court. On November 19, 2014, WMATA filed the

pending motion to dismiss. Less than a month later, the parties notified the Court that WMATA

had stipulated that the employee operating the Speed Swing was acting within the scope of his

employment and, based on that stipulation, the plaintiff dismissed the lawsuit against the

employee. Def.’s Stipulation Regarding Scope of Employment & Pl.’s Notice of Dismissal of



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Def. [ECF No. 9]. As a result of the voluntary dismissal, WMATA is the only remaining

defendant in this case.

                                      LEGAL STANDARDS

       The defendant moved to dismiss the plaintiff’s Complaint pursuant to Rule 12(b)(1) on

the ground that WMATA is immune from liability for negligent training and instruction. Def.’s

Mot. to Dismiss Pls.’s Complaint In Part 7 [ECF No. 7]. The defendant also moved to dismiss

the compensatory damages claim in accordance with Rule 12(b)(6) for failure to state a claim for

relief. Id. at 11. Because the Court finds that the defendant’s first challenge is more properly

considered under the rubric of Rule 12(b)(6), see Sierra Club v. Jackson, 648 F.3d 848, 853

(D.C. Cir. 2011) (indicating that a claim that an agency’s action was not justiciable because it

involved a discretionary function should have been considered under Rule 12(b)(6) rather than

Rule 12(b)(1)), the Court will assess both challenges to determine whether the plaintiff has stated

a claim for which relief can be granted.

       Pursuant to Rule 8 of the Federal Rules of Civil Procedure, to survive a motion to dismiss

a complaint “must contain . . . a short and plain statement of the claim showing that the pleader is

entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). “Under the Supreme Court’s rearticulation of

pleading requirements in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868

(2009), and Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929

(2007), ‘[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter,

accepted as true, to state a claim to relief that is plausible on its face.’” Rollins v. Wackenhut

Servs., Inc., 703 F.3d 122, 129 (D.C. Cir. 2012) (quoting Iqbal, 556 U.S. at 678).




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       Consistent with these principles, the Court employs a two-prong approach to

consideration of whether a complaint’s dismissal is warranted. Iqbal, 556 U.S. at 679. First, “a

court considering a motion to dismiss can choose to begin by identifying pleadings that, because

they are no more than conclusions, are not entitled to the assumption of truth.” Id. As the

Supreme Court has explained, “the tenet that a court must accept as true all of the allegations

contained in a complaint is inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678. Thus,

“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory

statements, do not suffice.” Id.

       Second, after identifying any well-pleaded factual allegations, “a court should assume

their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id.

at 679. Allegations are plausible “when the plaintiff pleads factual content that allows the court

to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at

678. The Court’s evaluation of the complaint to determine whether it states a plausible claim for

relief is “a context-specific task that requires the reviewing court to draw on its judicial

experience and common sense.” Id. at 679.

                                           DISCUSSION

       WMATA contends that the plaintiff’s claims for negligent training and instruction must

be dismissed because WMATA is immune from liability for such claims pursuant to Section 80

of the WMATA Compact. Def.’s Mem. of P. & A. In Support of Its Mot. to Dismiss Pl.’s

Compl. 3, 4-5 [ECF No. 7-1]. There appears to be no dispute between the parties about the legal

principles that apply, but the plaintiffs argue that dismissal of the negligent training and

instruction claim would be premature before discovery is conducted, Pl.’s Opp’n Br. 3 [ECF No.



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10], because “[d]iscovery might reveal that there are in fact specific WMATA policies and

procedures related to the training of employees like [the Speed Swing operator],” id. at 4.

       “In 1966, acting pursuant to the Compact Clause of the Constitution, U.S. Const. art. I,

§ 10, cl. 3, Congress approved the Washington Metropolitan Area Transit Authority Compact

between Maryland, Virginia, and the District of Columbia to deal with growing traffic problems

in the Washington area.” Beebe v. WMATA, 129 F.3d 1283, 1285 (D.C. Cir. 1997). This

agreement is referred to as the “WMATA Compact.” Burkhart v. WMATA, 112 F.3d 1207, 1216

(D.C. Cir. 1997). “In signing the WMATA Compact, Maryland, Virginia, and the District of

Columbia conferred upon WMATA their respective sovereign immunities.” Beebe, 129 F.3d at

1287. Accordingly, Section 80 of the WMATA Compact “provides that ‘[t]he Authority shall be

liable . . . for its torts and those of its Directors, officers, employees and agents committed in the

course of any proprietary function . . . but shall not be liable for any torts occurring in the

performance of a governmental function.’” Burkhart, 112 F.3d at 1216 (quoting former D.C.

Code § 1–2431(80), now D.C. Code § 9-1107.01(80)).

       The D.C. Circuit has “acknowledged . . . that section 80 of the WMATA Compact

provides a limited waiver of WMATA’s sovereign immunity for torts committed in the conduct

of any proprietary function, but not for torts occurring in the performance of a governmental

function.” KiSKA Constr. Corp. v. WMATA, 321 F.3d 1151, 1158 (D.C. Cir. 2003) (internal

quotation marks omitted and emphasis added). “Unless the limited waiver of immunity applies,

the district court lacks jurisdiction to enter a judgment against [WMATA].” Id. (internal

quotation marks omitted). “[T]he question of whether an activity is a governmental function for




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purposes of the WMATA Compact ‘is one of federal law.’” Burkhart, 112 F.3d at 1216 (quoting

Sanders v. WMATA, 819 F.2d 1151, 1154 (D.C. Cir. 1987)).

        In KiSKA Construction Corp., the D.C. Circuit explained that “[b]ecause the distinction

between proprietary and governmental functions has created a quagmire that has long plagued

the law of municipal corporations, we have interpreted section 80 as incorporating the distinction

between discretionary and ministerial functions, a dichotomy set forth in the Federal Tort Claims

Act (‘FTCA’).” 321 F.3d at 1158 (internal quotation marks and citations omitted).

Accordingly, given that “[o]nly those activities considered discretionary are shielded by

sovereign immunity, WMATA’s immunity turns on whether the [challenged] activity is

discretionary or ministerial.” Id. (internal quotation marks and citations omitted).

        The D.C. Circuit has adopted a two-part test to determine whether a particular function is

discretionary or ministerial:

        First, we ask “whether any ‘“statute, regulation, or policy specifically prescribes a
        course of action for an employee to follow.’” Id. (quoting Cope v. Scott, 45 F.3d
        445, 448 (D.C.Cir.1995) (quoting United States v. Gaubert, 499 U.S. 315, 322
        (1991))). If a course of action is so prescribed, “sovereign immunity does not bar
        suits based on an employee’s failure to follow the prescribed course of conduct.”
        Burkhart, 112 F.3d at 1217. If the governing statutes or regulations leave room for
        the exercise of discretion, however, we ask a second question: “whether the
        exercise of discretion is ‘grounded in ‘social, economic, or political goals.’” Beebe,
        129 F.3d at 1287 (quoting Cope, 45 F.3d at 448 (quoting Gaubert, 499 U.S. at
        323)). If the exercise of discretion is so grounded, and hence “susceptible to policy
        judgment,” Cope, 45 F.3d at 448, the “activity is ‘governmental,’ thus falling within
        section 80’s retention of sovereign immunity,” Beebe, 129 F.3d at 1287.

Id. at 1159 (parallel citations omitted). “‘Generally speaking, a duty is discretionary if it

involves judgment, planning, or policy decisions. It is not discretionary [i.e., ministerial] if it

involves enforcement or administration of a mandatory duty at the operational level, even if

professional expert evaluation is required.’” Beatty v. WMATA, 860 F.2d 1117, 1127 (D.C. Cir.


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1988) (quoting Jackson v. Kelly, 557 F.2d 735, 737-38 (10th Cir.1977)) (emphasis in original).

Accord KiSKA Const. Corp., 321 F.3d at 1159 (quoting Beatty, 557 F.2d at 1127).

       WMATA relies on the decision in Burkhart to support its claim that “the D.C. Circuit has

already determined ‘that decisions concerning the hiring, training, and supervising of WMATA

employees are discretionary in nature, and thus immune from judicial review.’” Def.’s Reply Br.

2 [ECF No. 11] (quoting Burkhart, 112 F.2d at 1217). The plaintiff counters, however, that the

D.C. Circuit “never held that all aspects of training of all WMATA employees would forever be

barred as discretionary,” Pl.’s Opp’n Br. 3 [ECF No. 10], and “[d]iscovery might reveal that

there are in fact specific WMATA policies and procedures related to the training of employees

like [the Speed Swing operator],” id. at 4.

       In Burkhart, the D.C. Circuit considered whether WMATA was immune from suits that

challenged its “hiring, training, and supervision practices.” 112 F.3d at 1216. The plaintiff in

Burkhart was a deaf Metrobus passenger who got into a physical altercation with a WMATA bus

operator over a fare dispute. Id. at 1209. In addition to a number of other tort claims, the

plaintiff alleged that WMATA “negligently hired, trained and supervised its bus operators and,

as a result, caused the assault and battery at issue.” Id. at 1209-10. After a trial, the jury

returned a verdict in favor of the plaintiff and “found WMATA directly liable for negligent

hiring, training and supervision, and awarded [the plaintiff] $50,000 for injuries caused by the

defendants’ acts.” Id. at 1210 (internal quotation marks omitted).

       On appeal, the D.C. Circuit reversed the judgment in part and held that “decisions

concerning the hiring, training, and supervising of WMATA employees are discretionary in

nature, and thus immune from judicial review.” Id. at 1217. With respect to the first step of the



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test to determine whether a function is discretionary, the D.C. Circuit noted that “[t]he parties

have pointed to no law or policy ‘specifically prescrib[ing]’ guidelines for the hiring, training, or

supervision of WMATA employees.” Id. The D.C. Circuit went on to find that the WMATA

Compact conferred “broad power” to WMATA with respect to employment and “hardly

contrain[ed] WMATA’s determination of whom it will employ or how it will train and supervise

such employees.” Id. at 1217. The D.C. Circuit concluded that, “[t]hus, WMATA has choices to

make.” Id. Proceeding to step two, the D.C. Circuit reasoned that:

       The hiring, training, and supervision choices that WMATA faces are choices
       “susceptible to policy judgment.” The hiring decisions of a public entity require
       consideration of numerous factors, including budgetary constraints, public
       perception, economic conditions, “individual backgrounds, office diversity,
       experience and employer intuition.” Tonelli v. United States, 60 F.3d 492, 496 (8th
       Cir. 1995). Similarly, supervision decisions involve a complex balancing of
       budgetary considerations, employee privacy rights, and the need to ensure public
       safety. The extent of training with which to provide employees requires
       consideration of fiscal constraints, public safety, the complexity of the task
       involved, the degree of harm a wayward employee might cause, and the extent to
       which employees have deviated from accepted norms in the past. Such decisions
       are surely among those involving the exercise of political, social, or economic
       judgment. See, e.g., Kirchmann v. United States, 8 F.3d 1273, 1277 (8th Cir. 1993)
       (holding that supervision of government contractors is a “discretionary function”);
       Tonelli, 60 F.3d at 496 (stating that “issues of employee supervision and retention
       generally fall within the discretionary function exception”); K.W. Thompson Tool
       Co. v. United States, 836 F.2d 721 (1st Cir.1988) (holding that “failure to properly
       train and supervise EPA personnel” falls within the discretionary function
       exception).

Id. Resolving that steps one and two pointed to a discretionary function, the D.C. Circuit

ultimately held that “the hiring, training, and supervision of WMATA personnel are

governmental functions . . . WMATA is therefore immune from suit for negligence in the

performance of such functions . . . [and] [t]he district court erred in refusing to dismiss [the

plaintiff’s] negligent hiring, training, and supervision claims against WMATA.” Id.




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       The plaintiff argues that the D.C. Circuit’s decision in Burkhart does not foreclose a

determination that a particular WMATA hiring, training or supervising function is ministerial

because “the decision shows that WMATA’s own policies constraining its discretion in the

specific subject 1 at issue are key in making such a determination.” Pl.’s Opp’n Br. 3 [ECF No.

10]. The plaintiff omits, however, to provide a pinpoint citation to any discussion in Burkhart

that indicates that WMATA’s “own policies constraining its discretion” were deemed to be “key

in making such a determination” or, much less, were given any consideration at all by the D.C.

Circuit. The Burkhart decision is devoid of any discussion about WMATA’s “own policies

constraining its discretion” 2 so it is unclear where the plaintiff is deriving this argument. The

D.C. Circuit looked only at the D.C. statute that implements the WMATA Compact to conclude

that decisions concerning the hiring, training and supervising of WMATA employees involve

discretionary functions.

       The plaintiff raises a fair point, however, that the D.C. Circuit’s decision in Beebe, which

was decided about six months after Burkhart, leaves open the possibility that some actions that

are related to employment decisions might not be considered discretionary. In Beebe, a

WMATA attorney sued when his position was eliminated during an office reorganization and he

was demoted rather than being hired for the replacement position. 129 F.3d at 1286. The

1
        The plaintiff identifies the “specific subject” as “how bus drivers should deal with deaf
customers” but the D.C. Circuit does not appear to have so limited its consideration. Pl.’s Opp’n
Br. 3 [ECF No. 10].
2
        Although unclear, it strikes the Court that the plaintiff must be referring to internal
policies WMATA might have promulgated or issued given that the implementing statute
constitutes Congress’s (not WMATA’s) policies and the most likely thing the plaintiff can
endeavor to obtain via discovery that is not already available in some public form are internal
policies and procedures.


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plaintiff raised a number of legal challenges to the way WMATA conducted the reorganization

and ensuing events. Id. Applying the two-part test to determine whether WMATA’s choices

about who to appoint to oversee the reorganization, as well as later actions by two officials

during the course of the reorganization, involved discretionary activities, the D.C. Circuit

concluded that the discretion to conduct the office reorganization was like the discretion to hire,

train and supervise bus operators that was the subject of its earlier decision in Burkhart. Id. at

1288 (stating that “we perceive no distinction between the discretion here and the hiring,

training, and supervision of bus operators at issue in Burkhart”). The D.C. Circuit cautioned,

however, that “[o]f course, not every action connected in some way to an employment decision

amounts to a discretionary function.” Id.

       The plaintiff seizes on the D.C. Circuit’s cautionary comment as support for his argument

that the Court should allow discovery so he can determine whether “there are in fact specific

WMATA policies and procedures related to the training of employees like [the Speed Swing

operator].” Pl.’s Opp’n Br. 4 [ECF No. 10]. According to the plaintiff, “[w]ithout discovery, it

is impossible to know whether such policies and procedures exist.” Id. A plaintiff may not,

however, use discovery to obtain the facts necessary to establish a claim that is plausible on its

face pursuant to Twombly and Iqbal -- even when those facts “are only within the head or hands

of the defendant[].” New Albany Tractor, Inc. v. Louisville Tractor, Inc., 650 F.3d 1046, 1051

(6th Cir. 2011). As the Supreme Court in Iqbal admonished, “Rule 8 . . . does not unlock the

doors of discovery for a plaintiff armed with nothing more than conclusions.” 556 U.S. at 678-

79. “[W]here the well-pleaded facts do not permit the court to infer more than the mere




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possibility of misconduct, the complaint has alleged – but it has not ‘show[n]’ – ‘that the pleader

is entitled to relief.’” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)).

        In this case, the plaintiff’s cause of action for negligent hiring and instruction consists of

the following two allegations:

        37. WMATA negligently failed to train and instruct [the Speed Swing operator] to
        use the speed swing properly.

        38. WMATA’s negligent failure to train and instruct [the Speed Swing operator]
        to use the speed swing properly resulted in his negligence, which proximately
        caused Mr. Ingram’s death.

Compl. ¶¶ 37, 38 [ECF No. 7-2]. These conclusory allegations represent the entirety of the

negligent hiring and supervision claim advanced by the plaintiff. Noticeably absent from the

Complaint are any facts to buttress the legal conclusions contained in these allegations.

        “Dismissal under Rule 12(b)(6) is proper when a plaintiff has failed to plead ‘enough

facts to state a claim to relief that is plausible on its face’ and to nudge his claims ‘across the line

from conceivable to plausible.’” Abbas v. Foreign Policy Grp., LLC, ___ F.3d ___, 2015 WL

1873140 (D.C. Cir. Apr. 24, 2015) (quoting Twombly, 550 U.S. at 570). “[A] plaintiff’s

obligation to provide the grounds of his entitle[ment] to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do . . . .”

Twombly, 550 U.S. at 555. Because the plaintiff alleged no facts to suggest, beyond the

plaintiff’s own speculation, that WMATA had policies and procedures in place related to

employee training, the Court is constrained to find that the Complaint fails to state a claim to

relief that is plausible on its face. Consequently, it is not necessary for the Court to resolve the

question of whether the D.C. Circuit’s decision in Beebe left open the possibility that some

WMATA actions involving the hiring, training and supervision of WMATA personnel could be



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deemed ministerial and not entitled to immunity under section 80 of the WMATA Compact

because the plaintiff’s Complaint fails to state a plausible claim for relief in any event.

                                          CONCLUSION

       For the foregoing reasons, the Court will grant in part Defendant Washington

Metropolitan Area Transit Authority’s Motion to Dismiss Plaintiff’s Complaint In Part [ECF No.

7]. As the Court already stated, the defendant’s remaining argument that the plaintiff failed to

state a claim for compensatory damages pursuant to the Virginia Wrongful Death Act will be the

subject of a ruling to be separately issued. An appropriate order will accompany this

memorandum opinion.




May 21, 2015                                         ____________________________
                                                             Thomas F. Hogan
                                                     Senior United States District Judge




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