                      UNITED STATES DISTRICT COURT
                      FOR THE DISTRICT OF COLUMBIA
__________________________________________
In the Matter of the                        )
FORT TOTTEN METRORAIL CASES                 )
Arising Out of the Events of June 22, 2009  )
                                            )
                                            )  Case No.: 10mc314 (RBW)
LEAD CASE: Jenkins v. Washington            )
Metropolitan Area Transit Authority, et al. )
                                            )
THIS DOCUMENT RELATES TO:                   )
ALL CASES                                   )
__________________________________________)


                                     Memorandum Opinion

        This Order addresses an issue that remained unresolved after the November 4,

2010 hearing on the Washington Metropolitan Area Transit Authority’s (“WMATA”)

motion to dismiss Counts IV and XIII of the plaintiffs’ Second Amended Master

Complaint (“Compl.”), alleging Negligence – Disabling of Warning Alarms in the

Operations Control Center based on the doctrine of sovereign immunity. The Court now

concludes that these claims must be dismissed.

                                          I. Introduction

        In Counts IV and XIII of their Second Amended Master Complaint, the plaintiffs

assert negligence claims against WMATA,1 Compl. ¶¶ 214-20, 277-83, on the grounds

that WMATA reprogrammed its train monitoring alarm system making warnings

“consistent with loss of train detection” both self-acknowledging and self-deleting. Id. ¶

217. Specifically, the plaintiffs allege that “bobbing,” a phenomenon where “an isolated

track circuit transitions from vacant, to occupied[,] and back to vacant again,” prior to the

1
 Count XIII is also pleaded against defendant ARINC. This opinion resolves only the claim pleaded
against WMATA.
reprogramming of the monitoring alarm system, triggered “alarms for loss of train

detection” that required acknowledgment by controllers in the Operation Control Center

(“OCC”), id. ¶¶ 168, 280, but because “bobbing had become such a frequent occurrence,

WMATA[,] in coordination with defendant ARINC[,] deliberately reprogrammed their

computer system to automatically erase these alarms,” id. ¶ 280. The plaintiffs argue that

this decision was “reckless,” id. ¶ 281, and absent such action “an OCC controller likely

would have communicated with Train 112 and the June 22, 2009 collision likely would

have been avoided,” id. ¶ 282.

       Commenting on this subject, the National Transportation Administration Safety

Board (“NTSB”) Report states:

                       The inbound main track . . . between the Takoma
               and Fort Totten stations is divided into 27 track circuits.
               The automatic block system detects trains as they occupy
               and vacate each of these track circuits and transmits this
               information through remote terminal units to the
               [Advanced Information Management (“AIM”)] computer
               system at the OCC.
                       ....
                       The AIM system is designed to display, and in some
               cases sound, an alarm whenever certain patterns are
               detected in track occupancy data. In general, alarms that
               are classified as “major” must be acknowledged by the
               appropriate line controllers and be manually deleted
               (usually by the Metrorail maintenance operations center
               [MOC], which is a separate console within the OCC).
               Typically, alarms classified as “minor” can be manually
               acknowledged and deleted in the same manner as major
               alarms, but if a minor alarm remains unacknowledged after
               60 seconds, the computer will automatically acknowledge
               and delete it.

                       When the AIM software detects that a normal main
               line track circuit is reporting as occupied in isolation
               (neither in front of nor behind a train), it issues a “track-
               circuit-failed-occupied” train tracking alarm. . . . According




                                             2
              to [the] OCC records, track-circuit-failed-occupied alarms
              occur at the rate of about 5,000 per week.

                      When the AIM software detects that a track circuit
              reports as unoccupied under certain preprogrammed
              conditions, it issues a “track-circuit-failed-vacant” train
              tracking alarm. . . . The algorithm used to trigger [a non-
              reporting block (“NRB”)] alarm may be described as
              follows: The AIM system creates a virtual train whenever
              two adjacent track circuits indicate simultaneous
              occupancy. If one or two new track-circuit occupancy
              indications then occur “downstream” (in the direction of
              travel) of the virtual train, any intermediate track circuit
              that indicates “unoccupied” will generate an NRB alarm. If
              both previously occupied track circuits indicate
              “unoccupied” without the track circuit downstream from
              these indicating “occupied,” both of the previously
              occupied track circuits will generate NRB alarms. If a train
              occupies three or more track circuits and one or more of the
              intermediate track circuits indicates “unoccupied,” those
              unoccupied track circuits will generate NRB alarms. . . .
              According to [the] OCC records, NRB track-circuit-failed-
              vacant alarms occur at the rate of about 3,000 per week.

                      The AIM software responds to a “bobbing” track
              circuit (a track circuit malfunction in which a track circuit
              transitions from vacant, to occupied, to vacant again with
              no train traffic present) by issuing a cascade of track-
              circuit-failed-occupied/failed-vacant alarms. Because of
              the high incidence of bobbing track circuit alarms,
              WMATA           has       designated     track-circuit-failed-
              occupied/failed-vacant alarms as minor alarms. Loss of
              train detection is a different type of track circuit
              malfunction .

National Transportation Safety Board, Railroad Accident Report 10/02: Collision of Two

Washington Metropolitan Area Transit Authority Metrorail Trains Near Fort Totten

Station Washington, D.C. June 22, 2009, available at

http://www.ntsb.gov/publictn/2010/RAR1002.pdf (“NTSB Report”) at 27-29 (footnotes

omitted). It is these two alarm triggering events described in the NTSB Report that the

plaintiffs contend should have been maintained as major rather than minor alarms, and



                                            3
that WMATA was negligent in reprogramming the designation of the alarms. WMATA

argues, on the other hand, that its decision to designate theses alarms as minor was a

decision protected by the doctrine of sovereign immunity.

                                         II. Analysis

       WMATA was created by an interstate compact between Maryland, Virginia, and

the District of Columbia with the consent of Congress. Sanders v. WMATA, 819 F.2d

1151, 1154 (D.C. Cir. 1987). WMATA has sovereign immunity, Morris v. WMATA,

781 F.2d 218, 219-20 (D.C. Cir. 1986), which is waived, inter alia, for torts committed in

the exercise of its proprietary functions, but not for the commission of any torts resulting

from its governmental conduct, id. at 220.              Actions that are “quintessentially

governmental,” such as the operation of a police force, or that require the exercise of

discretion under certain circumstances, constitute governmental conduct and WMATA’s

immunity is not waived when performing such activities. Abdulwali v. WMATA, 315

F.3d 302, 304 (D.C. Cir. 2002). And acts are considered discretionary, in the context of

sovereign immunity, if they involve judgment decisions “grounded in social, economic,

or political policy.” Sanders, 819 F.2d at 1155; see Abdulwali, 315 F.3d at 304 (applying

the test that distinguishes governmental and non-governmental activities in Federal Torts

Claims Act cases to WMATA Compact cases).

       WMATA argues that Counts IV and XIII of the complaint should be dismissed on

the grounds of sovereign immunity because the plaintiffs

               attempt to hold WMATA liable for the design of the
               automatic train control and safety system used in its
               Operations Control Center . . . [and] to hold WMATA
               liable for decisions made “to disable the warning alarm
               system”-i.e., decisions WMATA made as to how to




                                             4
               manage alarms that were issued by the OCC system based
               on input from the field devices.

WMATA’s Memorandum In Support of Its Motion to Dismiss Those Portions of the

Master Complaint That Are Barred by the Doctrine of Sovereign Immunity (“WMATA’s

Mem.”) at 30. WMATA posits that the plaintiffs’ allegations relate to the design of the

safety warning system and how to “manage and address problems with the alarms,”

decisions which “required the exercise of policy-based discretion, [and] WMATA is

protected by its sovereign immunity from these allegations.” Id.

       WMATA characterizes alarm management as “a complex problem presented in

the design of the automatic train control and safety system” and contends that its decision

to make bobbing circuit alarms minor and thus “self-acknowledging/self-deleting” alarms

was driven by concern that these frequent alarms “could result in obscuring critical

alarms that require prompt attention from the controller, and that the time needed to

address these alarms would also divert the controller from his or her other critical

responsibilities for the system.” WMATA’s Mem. at 32 (footnote omitted). WMATA

further asserts that “[q]uestions such as how to design and manage the safety warning

system and how to prioritize and designate the various types of alarms” were design and

planning decisions protected by sovereign immunity, whether made in the original design

or “in response to a recognized problem with the amounts of alarms generated by the

original system.” Id. at 33-34. WMATA contends that its decision is “susceptible to

policy analysis” because

               [t]he options presented by the problem all involved major
               undertakings which would have required the weighing of
               costs, benefits, the allocation of resources (including the
               evaluation of issues such as the need for additional staff to
               address the overwhelming amount of alarms generated by



                                             5
                the OCC and all the other OCC controller tasks) and
                alternatives as to how to maintain the safe operation of the
                Metrorail system.

Id. at 34. WMATA cites two District of Columbia Circuit cases in support of its position,

Souders v. WMATA, 48 F.3d 546, 547-50 (D.C. Cir. 1995) (dismissing nuisance claims

on grounds of sovereign immunity even though WMATA noise level standards exceeded

the maximum level permitted by noise pollution law in the area) and Sanders, 819 F.2d at

1152, 1156 (finding WMATA’s rule requiring drug testing of those employees “involved

in on-the-job accidents or unusual operating incidents” was protected from the

employees’ lawsuit under the doctrine of sovereign immunity because the “rule was

certainly grounded in the social, political, and regulatory activities of WMATA”).

        In their opposition to WMATA’s motion, the plaintiffs argue that WMATA is not

entitled to sovereign immunity because: (1) reprogramming the alarms represented

negligent maintenance of its system of train detection; and (2) the designation of the

alarms was prescribed by specific directives created by WMATA’s internal policies.

Plaintiffs’ Opposition to Defendant WMATA’s Motion to Dismiss Those Portions of the

Master Complaint That Are Barred by the Doctrine of Sovereign Immunity (“Pls.’

Opp’n”) at 33-36. In an attempt to clarify what they are asserting in their complaint, the

plaintiffs state in their opposition:

                        Counts IV and XIII are substantively the same and
                allege that WMATA was negligent in deliberately
                reprogramming its computer system to automatically erase
                alarms, without requiring any operator acknowledgment,
                that alerted WMATA to a loss of shunt, that is, a loss of
                train detection when a train is present. As discussed above,
                a loss of shunt is an extremely dangerous condition that
                WMATA’s own guidelines acknowledge “could lead to a
                rear-end collision.” (WMATA-GEN-00010928, Exhibit A)
                Yet, when alarms sounded notifying WMATA of this



                                             6
                 dangerous condition, it chose to ignore them at the peril of
                 its passengers. Rather than fix the dangerous loss of shunt
                 problem that was causing the alarms, WMATA alleges that
                 too many alarms were being generated and that is why it
                 programmed the alarms to just turn off after a short period
                 of time without having to be acknowledged by an
                 employee. (Defendant WMATA’s Memorandum at 32)
                 Thus, WMATA negligently failed to maintain its system of
                 train detection and the alarm system. It was as if WMATA
                 had burning fires all over its tracks, but rather than put
                 those fires out, it became annoyed with all the smoke
                 alarms and so it programmed them to automatically turn off
                 once triggered.

Id. at 33 (footnote omitted). In the footnote incorporated into this passage, the plaintiffs

further explain: “Counts IV and XIII also allege WMATA negligently turned off the

alarms that alerted WMATA to the ‘bobbing’ condition as well, which is when the

system incorrectly displays that a train is present when one is not present, as opposed to

shunting, which incorrectly displays that no train is present when one is, in fact, present.”

Id. at 33 n.7.

        The plaintiffs also allege that designating the “loss of shunt alarms” as minor

alarms was an action in contravention of specific directives created by WMATA internal

policies. Id. at 33-35. They argue that the existence of specific directives eliminated

WMATA’s discretion and thus defeats its claim of sovereign immunity. See Berkovitz v.

United States, 486 U.S. 531, 536-37 (1988). Specifically, the plaintiffs claim that

WMATA’s decision was not discretionary due to “its own written policies,” Pls.’ Opp’n

at 33, contained in its June 12, 2005 Engineering Bulletin & Automatic Train Control

Safety Notice to all Automatic Train Control Personnel (“Engineering Bulletin”) and its

Automatic Train Control System Integrity Maintenance Practices Rev. 1: 03/2512003

(“Maintenance Practices”). Id. at 33-34. As support for their position, the plaintiffs




                                              7
quote a section of WMATA’s Engineering Bulletin, which states: “Diminished shunt

sensitivity can cause a partial loss of train detection in an affected track circuit . . . [and]

could lead to a rear-end collision. Early detection of this problem is imperative.” Id. at

34 (emphasis added by the plaintiffs). And they quote a section from the Maintenance

Practices, which states:

                When any component the functioning of which is essential
                to the safe movement of trains, fails to perform its intended
                restricting safety function or is not in correspondence (not
                in agreement) with known operating conditions, train
                movements dependent on the normal functioning of such
                circuit or device shall be prohibited or protected by
                alternate means until repairs are complete.

Id.   The plaintiffs allege that these statements establish that the manner in which

WMATA responded to alarms “demonstrating a loss of shunt” was not discretionary, but

rather “was explicitly required to ‘prohibit[] or protect[] by alternate means’ all ‘train

movements dependent on the normal functioning of such circuit or device,’ until repairs

on that circuit or device were ‘complete,’” and that WMATA “utterly failed to do either

of these things.” Id. at 34-35.

        In its reply, WMATA reiterates that the designation of alarms is a policy decision,

and further contends that the plaintiffs understanding of the concept of loss of shunt is

misguided because loss of shunt resulting in a loss of train detection is different from loss

of shunt resulting in loss of speed commands. WMATA’s Reply Memorandum In

Support of its Motion to Dismiss Those Portions of the Master Complaint That Are

Barred by the Doctrine of Sovereign Immunity (“WMATA’s Reply”) at 23. Importantly,

however, WMATA argues that “the distinctions between the[] two track conditions are

not critical to a discretionary function analysis,” id. at 23-24, because a “[s]overeign




                                                8
immunity analysis focuses on the type of decision, and whether [such a decision] is

susceptible to policy analysis.” Id. at 24 (citing United States v. Gaubert, 499 U.S. 315,

323 (1991)). Therefore, WMATA asserts that “the important distinction must be seen

between (1) the decisions WMATA made regarding the designation of the alarms

received by the Operations Control Center, and (2) WMATA’s efforts to identify, repair,

and adopt maintenance procedures to prevent the problem causing the alarms.”

WMATA’s Reply at 24.

         As a preliminary matter, the Court appreciates that there is a dispute between the

parties as to what activity WMATA’s alarm systems were capable of detecting, and

whether the OCC would have been alerted by the alarm systems of the malfunction the

plaintiffs contend contributed to the event that is the subject of this litigation. Compl. ¶

217; WMATA’s Reply at 23 & n.7.2 However, this dispute is not relevant to the issue the

Court must decide, which is whether WMATA’s decision to reprogram its alarm system

amounted to a discretionary call grounded in social, economic, or political policy

considerations in assessing whether it is entitled to sovereign immunity with respect to

Counts IV and XIII of the Complaint.

         Both parties have referred the Court to Cope v. Scott, 45 F.3d 445 (D.C. Cir.

1995), as support for their respective positions.3 In Cope, a motorist injured in an


2
  The Court notes that despite the dispute as to what exactly was detectable by the alarm system, the NTSB
Report’s findings appear to represent that, for the particular malfunction that was determined to be
responsible for the accident, the event could have been detected and confirmed only by testing performed
by engineering crews, not through the sounding of an alarm. Id. at 39-40, 45-46, 65, 71, 83-84; WMATA’s
Reply at 23 & n.7.
3
 In advancing their respective arguments, both parties emphasize the following quotation from Cope:
“[W]e have consistently held that the discretionary function exception applies only where ‘the question is
not negligence but social wisdom, not due care but political practicability, not reasonableness but economic
expediency.’” 45 F.3d at 450 (quoting Blessing v. United States, 447 F. Supp. 1160, 1170 (E.D. Pa. 1978).
                                                                                              (continued . . .)


                                                      9
accident that occurred on a road in Rock Creek Park “maintained by the National Park

Service,” id. at 446, sued the Park Service, alleging, inter alia, that it was negligent “in

failing to appropriately and adequately maintain the roadway . . . and failing to place and

maintain appropriate and adequate warning signs along the roadway,” id. at 447. The

district court granted summary judgment to the Park Service on both claims and the

District of Columbia Circuit affirmed the ruling on the claim concerning maintenance of

the roadway. Id. at 452. In reaching this conclusion, the Circuit noted that the record

established that “no regular maintenance would have prevented the road from

deteriorating” in the way [the plaintiff] allege[d],” i.e., the road having “inadequate skid

resistance,” which “could have been prevented only by reducing the traffic load, initially

paving it with a different surface, resurfacing the curve entirely, or at least milling the

curve to create grooves in the surface.” Id. at 451. The Circuit found, based on an

engineering study of roads in Rock Creek Park, that “[d]etermining the appropriate


(. . . continued)
Research into the origin of this quotation reveals that this language was not intended as a test to delineate
when the discretionary function exception applies, but rather is an explanation for the rationale underlying
the very existence of the discretionary function exemption. Those words were first expressed by Judge
Edward Becker while sitting as a district judge prior to his appointment as a judge on the Third Circuit.
The full text of the paragraph from which the words are taken is the following:

                  Statutes, regulations, and discretionary functions, the subject matter of
                  [28 U.S.C.] § 2680(a), are, as a rule, manifestations of policy
                  judgments made by the political branches.              In our tripartite
                  governmental structure, the courts generally have no substantive part to
                  play in such decisions. Rather, the judiciary confines itself or, under
                  laws such as the FTCA's discretionary function exception, is confined
                  to adjudication of facts based on discernible objective standards of law.
                  In the context of tort actions, with which we are here concerned, these
                  objective standards are notably lacking when the question is not
                  negligence but social wisdom, not due care but political practicability,
                  not reasonableness but economic expediency. Tort law simply
                  furnishes an inadequate crucible for testing the merits of social,
                  political, or economic decisions.

Blessing, 447 F. Supp. at 1170 (footnotes omitted).




                                                      10
course of action would require balancing factors such as the [road’s] overall purpose, the

allocation of funds among significant project demands, the safety of drivers and other

park visitors, and the inconvenience of repairs as compared to the risk of safety hazards.”

Id. Consistent with Supreme Court precedent, the Circuit concluded that “such decisions

require the agency to establish priorities for the accomplishment of its policy objectives,

by balancing the objective sought to be obtained against such practical considerations as

staffing and funding.” Id. (quoting United States v. Varig Airlines, 467 U.S. 797, 820

(1984)). And as the Supreme Court refused to do in Varig, the Circuit in Cope “declined

to ‘second guess’ those judgments.” Id. (quoting Varig, 467 U.S. at 820).

       The court in Cope, however, vacated the district court’s grant of summary

judgment regarding the claim asserting that there was inadequate signage warning users

of the condition of the road’s surface. Id. In reaching this result, the court stated, “we

find that the discretion regarding where and what type of signs to post is not the kind of

discretion protected by the discretionary function exception,” because it was not a

judgment “fraught with public policy considerations.” Id. The court found the Park

Service’s arguments related to engineering principles and aesthetic considerations

unconvincing, concluding:

               Here, the Park Service has chosen to manage the road in a
               manner more amenable to commuting through nature than
               communing with it. Having done so, and having taken
               steps to warn users of dangers inherent in that use, the Park
               Service cannot argue that its failure to ensure that those
               steps are effective involves protected “discretionary”
               decisions.

Id. at 452. The Cope case thus demonstrates that the discretionary function exemption

applies only where the government demonstrates that it not only had to make a




                                             11
discretionary decision but also that the decision was “fraught with public policy

considerations.” Id. at 451-52.

         A case from the United States Court of Appeals for the Fourth Circuit sheds light

on the type of decisions considered “fraught with public policy considerations” in the

context of WMATA’s metrorail system. Smith v. WMATA, 290 F.3d 201 (4th Cir.

2002). In Smith, a passenger “suffered a fatal heart attack” as he “climbed [Escalator

One at one of the system’s underground stations] which was being utilized as a stairway,

i.e., a ‘stationary walker.’” Id. at 203. The passenger was at the Bethesda station, which

could normally be accessed by way of three escalators and an elevator. Id. On the day of

Smith’s death, however, “Escalator Two” had failed a safety inspection and a safety

inspector refused to allow it to be used as either an escalator or a stationary walker, and

“Escalator Three” was “in a state of disassembly awaiting a replacement part” after a

problem was uncovered during routine maintenance. Id. at 204. WMATA thus “made

the decision to utilize its sole operating escalator[, Escalator One,] as a stationary

walker.” Id. Smith’s parents sued WMATA alleging that it was negligent in (1)

“brak[ing] Escalator One for use as a stationary walker”; (2) le[aving] Escalator Three

disassembled pending repair; (3) “fail[ing] to warn its Bethesda patrons of the

conditions”; and (4) “fail[ure] to repair and maintain Escalators Two and Three.”4 Id.

         The Fourth Circuit held that WMATA’s decision to use Escalator One as a

stationary walker constituted an exercise of discretion entitled to immunity under

circumstances where it had to make a choice to use Escalator One as a stationary walker

or operate Escalator One in the up or down direction, forcing patrons moving in the

4
 There was an additional theory of negligence not before the Fourth Circuit on appeal as a result of a lower
court ruling regarding proximate cause. Smith, 290 F.3d at 211.



                                                    12
opposite direction to use the elevator. Id. at 208-09. The court emphasized that

WMATA was “[f]aced with what plainly constituted an emergency situation . . . [and

t]here being no statutory or regulatory mandate specifically governing METRO’s actions

in response to that situation, the METRO personnel . . . were forced to make difficult

choices.” Id. And, because “[t]here were potential economic and political costs to the

METRO in choosing between such unattractive resolutions of its problem . . . [,

including] public outrage, adverse media coverage, or political fallout . . . [, it had to

make a choice that was] plainly a decision ‘susceptible to policy judgment.’” Id. at 209.

Accordingly, the Fourth Circuit found that WMATA’s “decision not to reassemble

Escalator Three for use during rush hour on [the day the decedent suffered his heart

attack was] also a governmental decision shielded by the discretionary function . . .

[because] the potential choices implicated the ecopolicy of METRO, i.e., whether it was

more cost-effective to reassemble Escalator Three pending repair, or whether to wait until

replacement parts arrived.” Id. 209-10. This was true, the Court concluded, “[e]ven if

this decision had been incorrect, and even if it had constituted an abuse of discretion.”

Id. at 210. WMATA was also found to be immune by operation of the discretionary

function exemption for “its alleged failure to properly warn its Bethesda patrons of the

inoperative status of Escalators Two and Three.” Id.5

         Smith illustrates the “type of decision . . . [courts have found to be] grounded in

social, economic, or political policy,” Cope, 45 F.3d at 449, and the “flexibility”, id. at




5
  The only theory upon which the court remanded the case to the district court was on the plaintiffs’ claim
that WMATA had “negligently failed to repair and maintain” the two inoperable escalators. Smith, 290
F.3d at 211.



                                                     13
450, courts must accord to decisions that are “fraught with public policy considerations,”

id. at 451.

        Here, WMATA contends that its redesignation of the track alarms about which

the plaintiffs complain in Counts IV and XIII of their Complaint was implemented due to

“the cascading amount of alarms generated by the failsafe automatic train safety system.”

WMATA’s Mem. at 34. This large number of alarms, which WMATA considered “not

critical to the OCC controller[s],” caused WMATA “concern[] that this situation could

result in obscuring critical alarms that required prompt attention from the controller[s],

and that the time needed to address these alarms would divert the controller[s] from

[their] other critical responsibilities for the system.” Id. at 32. WMATA represents that

               [t]he options presented by the problem all involved major
               undertakings which would have required the weighing of
               costs, benefits, allocation of resources (including the
               evaluation of issues such as the need for additional staff to
               address the overwhelming amount of alarms generated by
               the OCC and all the other OCC controller tasks) and
               alternatives as to how to maintain the safe operation of the
               metrorail system.

Id. at 34. And WMATA argues that these “social and economic judgments,” id., are the

type of discretionary decisions “protected by sovereign immunity,” WMATA’s Reply at

25.

        The Court agrees that it cannot second-guess WMATA’s decision to reprogram

its alarm system and designate the alarms that are the subject of Counts IV and XIII as

minor rather than major alarms. The NTSB Report verifies that the two alarms at issue,

the “‘track-circuit-failed-occupied’ train tracking alarm” and the “‘track-circuit-failed-

vacant’ train tracking alarm,” were collectively activated at the rate of 8,000 per week.

NTSB Report at 28. This high volume of alarm activity coupled with the implications



                                             14
resulting from the volume clearly supports WMATA’s assessment that its redesignation

of the alarms was a discretionary decision “fraught with public policy considerations.”

Cope, 45 F.3d at 451.

        In addition, the Court agrees with WMATA that the mandatory directives cited by

the plaintiffs in their filings represent general safety obligations rather than internal

policies dictating how the alarm system must be operated specifically. Like the situation

in Smith, “there [was] no statutory or regulatory mandate specifically governing the

METRO’s actions in response to” the high volume of alarms, and “the METRO

personnel . . . were forced to make [a] difficult choice[].” Smith, 290 F.3d at 209; see

also WMATA’s Mem. at 33 (stating that “[n]o statute or regulation prescribed the

manner or methods of the OCC system, and there was no requirement that the system

even include[] alarms, let alone [a] designat[ion of the] priority” they should be given).

WMATA’s decision concerning how the alarms should be designated required

“balancing factors such as [the alarms’] overall purpose, the allocation of funds among

[other demands, and] the safety [of passengers],” in addition to other considerations. See

Cope, 45 F.3d at 451. Therefore WMATA’s decisions “were much like the [policy]

decisions exempted by the Supreme Court in Varig[, and] such decisions require the

agency to establish priorities for the accomplishment of its policy objectives by balancing

the objectives sought to be obtained against such practical considerations as staffing and

funding.” Id. at 451 (quoting Varig, 467 U.S. at 820); see also Smith, 290 F.3d at 209

(stating that “[t]here were potential economic and political costs to the METRO in

choosing between such unattractive resolutions of its problem . . . [, including] public

outrage, adverse media coverage, or political fallout . . . [, and it had to make a choice




                                              15
that was] plainly a decision ‘susceptible to policy judgment’”). Thus, the Court is

persuaded that WMATA’s decision to designate the alarms as “minor” was a decision

implicating “potential economic and political [considerations] to the METRO,” Smith,

290 F.3d at 209, that was “fraught with public policy concerns,” Cope, 45 F.3d at 451.

And the discretion exercised by WMATA in this context falls squarely into the “public

policy” sphere of decisions that are not subject to liability under the Compact.

                                     III. Conclusion

       For all the above reasons, the Court concludes that Counts IV and XIII as pleaded

against WMATA must be dismissed on sovereign immunity grounds.

       SO ORDERED.




                                                     REGGIE B. WALTON
                                                     United States District Judge




                                            16
