UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
ROBERT BUCK,
Plaintiff,
v. Civil Action No. 17-632 (RDM) WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY,
Defendant.
MEMORANDUM OPINION
This case presents the following question of first impression: Does the Civil Rights
Remedies Equalization Act (“CRREA”), 42 U.S.C. § 2000d-7, waive the sovereign immunity of
state transportation agencies for purposes of civil actions brought by private parties under the
National Transit Systems Security Act (“NTSSA”), 6 U.S.C. § 1142?
Plaintiff Robert Buck, a former employee of Defendant Washington Metropolitan Area
Transit Authority (“WMATA”), brought this suit against WMATA, alleging that it violated the
whistleblower protection provisions of the NTSSA by firing him because he provided
information to his supervisors about public safety violations at WMATA. Dkt. 1. The NTSSA,
among other things, prohibits public transportation agencies from “discharg[ing]” or otherwise
“discriminat[ing] against an employee” based “in whole or in part” on the employee’s “lawful,
good faith” provision of information relating to conduct that “the employee reasonably believes
constitutes a violation of any Federal law, rule, or regulation relating to public safety or security”
to “a person with supervisory authority over the employee.” 6 U.S.C. § 1142(a). To enforce
this right, the NTSSA permits an aggrieved party to file an administrative complaint with the Secretary of Labor and, if the Secretary does not issue a final decision within 210 days, to bring a
“de novo” action against his employer in federal district court. Id. at § 1142(c)(1), (c)(7).
The wrinkle presented here is that WMATA is an agency of the States of Maryland and
Virginia (as well as of the District of Columbia) and is, therefore, entitled to immunity from
private suit under the Eleventh Amendment. See Barbour v. Wash. Metro. Area Transit Auth.,
374 F.3d 1161, 1163 (D.C. Cir. 2004). Nothing contained in the NTSSA puts the States on clear
notice that, by accepting federal transportation funds, they implicitly waive their immunity from
suit under the NTSSA. The one statute that even arguably provides such notice is the CRREA,
which abrogates the Eleventh Amendment immunity of the States for purposes of private suits
brought in federal court for violations “of section 504 of the Rehabilitation Act of 1973, title IX
of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil
Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by
recipients of Federal financial assistance.” 42 U.S.C. § 2000d-7(a)(1) (emphasis added). The
dispositive question, accordingly, is whether the NTSSA is—like the Rehabilitation Act, Title
IX, the Age Discrimination Act, and Title VI—a “statute prohibiting discrimination by recipients
of Federal financial assistance.”
Because the Court concludes that it is not, and because Plaintiff fails to identify any other
applicable waiver or abrogation of WMATA’s sovereign immunity, the Court lacks jurisdiction
and must, accordingly, grant WMATA’s motion for summary judgment and dismiss the case.
I. BACKGROUND
A. Factual Background
For purposes of WMATA’s motion for summary judgment, the Court “must view the
evidence ‘in the light most favorable to’” Plaintiff, as the nonmoving party. Tolan v. Cotton, 572
2 U.S. 650, 657 (2014) (per curiam) (quoting Adickes v. S.H. Kress & Co., 398 U.S. 144, 157
(1970)).
Plaintiff worked as an at-will supervisor at the Landover Division, and later the Four
Mile Division, of WMATA. Dkt. 19-7 at 5, 7 (Buck Dep. 15:16–20, 25:14–20). His work
involved “direct[ing] all [b]us [t]ransportation related work and activities for his . . . assigned
sector,” including “correct[ing] safety . . . issues.” Dkt. 19-3 at 1–2 (Def. Ex. 2). Plaintiff was
required to inform his supervisors when a bus “operator did anything” constituting “a violation
of WMATA safety rules.” Dkt 19-7 at 7 (Buck Dep. 24:11–25:4). He was responsible for
discipling the operator, documenting the violation, and “forward[ing]” the relevant document to
the appropriate parties. Id. (Buck Dep. 25:4); Dkt. 21-1 at 31 (Pl. Ex. 3). One of Plaintiff’s
safety-related job duties included “[o]versee[ing] [the] DriveCam program and” providing
“feedback” to ensure that drivers received effective “coaching,” discipline, and “training.” Dkt.
21-1 at 31 (Pl. Ex. 3). The DriveCam program maintains video recording devices in WMATA
buses that allow WMATA to monitor operators’ performances and other information. See Dkt
19-7 at 10 (Buck Dep. 34:4–35:16). Although Plaintiff was not a union member, many of the
employees that he worked with and supervised at WMATA were. See id. at 5–6 (Buck Dep.
15:21–16:12, 21:18–22).
In February 2013, Plaintiff’s direct supervisor, Ted Harris, and his reviewing manager,
Jack Requa, assessed Plaintiff’s job performance. Dkt. 21-1 at 37 (Pl. Ex. 3). They noted that
Plaintiff “is very personable and well respected by his subordinates and peers” and “[h]as a great
relationship with the union representatives.” Id. They stated that Plaintiff had “restarted the
employee of the month program” and “started an Employee mentor program.” Id. at 32.
Plaintiff also received an “[o]utstanding” rating for “Safety Conversations,” “Accident
3 Reduction,” “Worker’s Compensation Reduction,” and “DriveCam Coaching Effectiveness.” Id.
at 31. Overall, Plaintiff’s evaluators gave him an “[o]utstanding” review, concluding that he was
“capable of running a transportation division,” had “done an outstanding job of communicating
effectively and efficiently his safety needs,” and was “very influential and well respected within”
WMATA. Id. at 40.
In March 2013, Buck witnessed a bus operator named R.V. Mack stop a bus in a
crosswalk to load passengers, nearly close the bus doors on a Service Operations Manager, Julio
Santana, and then drive the bus forward while still very close to Santana. Dkt. 21-1 at 44 (Pl. Ex.
4); Dkt. 21-2 at 24–25 (Buck Dep. 50:12–51:16); Dkt. 21-2 at 92–93 (Santana Dep. 54:16–
55:13). In Plaintiff’s view, Mack’s behavior constituted a “safety violation.” Dkt. 21-2 at 25
(Buck Dep. 51:15–16). Plaintiff later learned that Harris had met with Mack’s supervisor,
Sophia Coleman-Hill, and a union representative to discuss the incident. Dkt. 21-2 at 22–23
(Buck Dep. 48:6–49:5). According to Plaintiff, when he spoke to Harris about the incident and
contradicted Coleman-Hill’s account in at least one respect, Harris “got all nasty and [began]
yelling at [Plaintiff] saying, [‘]That’s another Superintendent you’re calling a liar . . . . This is a
team.[’]” Id. at 25 (Buck Dep. 51:4–11). Santana, who Coleman-Hill accused of falsely
claiming that he was injured, suggested at his deposition that Coleman-Hill was attempting to
protect Mack from repercussions for his dangerous driving. Dkt. 21-1 at 95–98 (Santana Dep.
57:20–60:10).
Around April 17, 2013, Harris informed Plaintiff by memorandum that it had “come to
[his] attention” that Plaintiff’s “approach to managing staff and implementing rules, regulations
and discipline [was] causing great concern.” Dkt. 19-4 (Def. Ex. 3). The memorandum
continued: “I believe your approach is intimidating and has created hostility within the Landover
4 operation to a point that is unacceptable.” Id. Harris informed Plaintiff that his probationary
period as a new employee would be extended and he would be monitored for “significant
improvement in [his interpersonal] skills.” Id.
In late September or early October 2013, Plaintiff reviewed a DriveCam video that
showed a bus operator, Warrior Richardson, “turning around away from looking out the front
window, . . . [and] reaching up to an electronic device” called a CleverCAD, which the “operator
logs into” and which keeps track of and provides various kinds of information used in bus
operations, while he was still operating the bus. Dkt. 19-7 at 9–10 (Buck Dep. 33:30–35:16);
Dkt. 19-5 at 2 (Def. Ex. 4) (stating that the violation of the electronic device policy occurred on
September 28, 2013). Using a CleverCAD while operating a bus violated WMATA policy. See
Dkt. 19-5 at 3 (Def. Ex. 3) (describing WMATA’s electronic device policy). According to
Plaintiff, after viewing the video of Richardson’s safety violation, he consulted with Lynda
Jackson from “labor relations,” Dkt. 19-7 at 10 (Buck Dep. 35:17–21); Dkt. 21-2 at 67 (Jackson
Dep. 52:1–18), who told him that WMATA policy required termination of any driver who used
such a device while operating a bus, Dkt. 19-7 at 10 (Buck Dep. 37:10–15); see also Dkt. 21-2 at
45 (Harris Dep. 29:16–31:16) (testifying that the penalty for using an electronic device, such as a
“cell phone[],” “I-pad[],” or “recording device[],” while operating a bus was termination).
Plaintiff completed his investigation and sent the termination paperwork to Jackson for approval.
Dkt. 19-7 at 11 (Buck Dep. 39:1–10).
Plaintiff issued Richardson a memorandum of dismissal on October 9, 2013. Dkt. 19-5 at
2–4 (Def. Ex. 4). The memorandum explained that the DriveCam footage showed Richardson
using an electronic device while operating a bus and that this conduct violated WMATA’s “Zero
Tolerance” policy. Id. at 2–3. The memorandum further stated that Office Manager Carol
5 Martin interviewed Richardson on October 3, 2013; that the two viewed the recording together;
and that Richardson told Martin that he was “attempting to log off in the radio.” Id. at 2; see
also Dkt. 21-1 at 49 (Pl. Ex. 6) (summarizing Richardson’s description of the event).
The next day, October 10, 2013, Buck emailed Harris informing him that he had
terminated Richardson one day earlier “for Violating the Electronic Device Policy by using the
bus radio to log off.” Dkt. 19-5 at 5 (Def. Ex. 4). Buck apologized to Harris “for not sending
this [email] earlier” and explained that he had “counseled with Lynda Jackson before taking the
action.” Id. Buck testified at his deposition that he “had an email set up to notify” Harris on
October 9, 2013; that he “thought [he] had sent it;” and that he only realized “when [he] looked”
at his emails “the next day” that he had forgotten to “hit ‘send.’” Dkt. 19-7 at 11–12 (Buck Dep.
41:13–42:7).
On October 11, 2013, Harris went to Buck’s office and informed Buck that he “was
terminated.” Dkt. 19-7 at 8–9 (Buck Dep. 29:8–30:14). A memorandum dated October 10,
2013, from Harris and addressed to Buck, discusses the reasons for Buck’s termination. Dkt. 19-
6 (Def. Ex. 5). It mentions the April memorandum that had informed Buck of his inadequate
performance and had extended his probationary period. Id. at 1. The memorandum states:
“Team Members . . . have expressed extreme dissatisfaction with your administrative approach
and your inflexibility to deal with discipline through proper internal protocols and CBA
[Collective Bargaining Agreement] regulations. Most recently, you terminated an employee
without properly and thoroughly” discussing the matter with either “Labor Relations staff” or
Harris. Id. Buck testified that no one showed him this memorandum on the day he was
terminated. Dkt. 19-7 at 8 (Buck Dep. 28:1–19). Buck further testified that, after his
termination, he learned that Richardson was the son of Coleman-Hill, the WMATA
6 superintendent who had been involved in the earlier conflict over the safety incident involving
Mack and Santana. Dkt. 19-7 at 12 (Buck Dep. 43:17–44:14).
B. Procedural History
Buck filed a NTSSA complaint with the Secretary of Labor’s “Region 3 OSHA
Whistleblower Office on March 10, 2014,” Dkt. 1 at 6 (Compl. ¶ 24), within the 180 days of his
termination, as required by the statute, 6 U.S.C. § 1142(c)(1) (requiring an aggrieved party to file
a complaint with the Secretary of Labor within 180 days of the alleged NTSSA violation). That
office began an investigation with which Buck cooperated. Dkt. 1 at 6 (Compl. ¶ 25). After 210
days passed without the Secretary of Labor issuing a final order, id.; 6 U.S.C. § 1142(c)(7)
(providing for “de novo review in the appropriate district court of the United States” “if the
Secretary of Labor has not issued a final decision within 210 days after the filing of the
complaint and if the delay is not due to the bad faith of the employee”), Plaintiff filed this
lawsuit, alleging that WMATA had retaliated against him in violation of the NTSSA, see
generally, Dkt. 1 (Compl.). Buck seeks “expungement of any and all references to the adverse
actions related to [his] protected activities,” as well as compensatory, punitive, and special
damages including attorney’s fees and costs. Dkt. 1 at 6–7 (Compl.). After the parties
completed discovery, WMATA moved for summary judgment on multiple grounds, including its
asserted Eleventh Amendment immunity from suit. Dkt. 19.
II. ANALYSIS
WMATA makes three arguments. First, it argues that the Eleventh Amendment bars
Plaintiff’s suit under the NTSSA. Id. at 9. Second, it asserts that Plaintiff’s conduct cannot
serve as the basis for a retaliation claim under the NTSSA because it fell within his normal job
duties. Id. at 12. Third, it argues that Plaintiff’s reporting of dangerous conduct did not
7 contribute to his termination, but, rather, that his failure to follow proper protocols in firing
another employee caused his termination. Id. at 13. The Court reaches only WMATA’s first
argument because, as explained below, Plaintiff’s suit is barred by sovereign immunity, and the
Court, accordingly, lacks Article III jurisdiction. See Seminole Tribe of Fla. v. Florida, 517 U.S.
44, 64 (1996) (observing that “the fundamental principle of sovereign immunity . . . limits the
grant of judicial authority in Article III”) (quoting Pennhurst State Sch. & Hosp. v. Halderman,
465 U.S. 89, 97–98 (1984))).
A. Sovereign Immunity
All agree that, absent a lawful waiver or abrogation of sovereign immunity, WMATA is
immune from suit. As the D.C. Circuit has explained, “WMATA . . . was created by an
interstate compact among Maryland, Virginia, and the District of Columbia, and [it] enjoys the
Eleventh Amendment immunity of the two signatory states,” as well as immunity conferred upon
it by Congress. Barbour, 374 F.3d at 1163; see also Morris v. Wash. Metro. Area Transit Auth.,
781 F.2d 218, 219 (D.C. Cir. 1986) (“WMATA’s sovereign immunity exists because the
signatories have successfully conferred their respective sovereign immunities upon it.”); Jones v.
Wash. Metro. Area Transit Auth., 205 F.3d 428, 432 (D.C. Cir. 2000) (same). To be sure, “‘by
its terms[,] the [Eleventh] Amendment applies only to suits against a State by citizens of another
State,” but “the Supreme Court has ‘extended the Amendment’s applicability to suits by citizens
against their own states.’” Barbour, 374 F.3d at 1163 (quoting Bd. of Trs. of Univ. of Ala. v.
Garrett, 531 U.S. 356, 362 (2001)). The sovereign immunity of the States—and, by extension,
WMATA—however, is not absolute and is subject to “two important exceptions.” Id. First, in
an exercise of its power under section 5 of the Fourteenth Amendment, Congress may abrogate
8 the Eleventh Amendment immunity of the States. Id. Second, “a state may waive its immunity
and consent to suit.” Id.
In the present context, the Court need not linger over the first of these exceptions.
Plaintiff does not contend—nor could he contend—that Congress enacted the NTSSA or
otherwise authorized whistleblower suits against entities like WMATA as an exercise of
Congress’s authority to enforce the Fourteenth Amendment, see, e.g., Tennessee v. Lane, 541
U.S. 509, 518, 533 (2004); Hibbs, 538 U.S. at 726, or any similar grant of legislative power that
might supersede the Eleventh Amendment, see, e.g., Fitzpatrick v. Bitzer, 427 U.S. 445, 455–56
(1976) (suggesting that Congress possesses similar authority under the other “Civil War
Amendments” to intrude on “autonomy previously reserved to the States”). To determine
whether a statute abrogates the sovereign immunity of the States, the Court must resolve two
questions: First, the Court must determine “whether Congress unequivocally expressed an intent
to abrogate that immunity.” Kimel v. Fla. Bd. of Regents, 528 U.S. 62, 73 (2000). Second, “if it
did,” the Court must consider “whether Congress acted pursuant to a valid grant of constitutional
authority.” Id.; see also Nevada Dep’t of Human Res. v. Hibbs, 538 U.S. 721, 726 (2003)
(noting that Congress may abrogate state sovereign immunity “if it makes its intention to
abrogate unmistakably clear . . . and acts pursuant to a valid exercise of its power under § 5 of
the Fourteenth Amendment”).
For present purposes, resolution of the second question is both clear and dispositive, and
thus the Court need not consider whether Congress expressed unequivocal intent to abrogate
state sovereign immunity in enacting the NTSSA. In Seminole Tribe, the Supreme Court
overruled Pennsylvania v. Union Gas, 491 U.S. 1 (1989), and held that Congress lacks power
under Article I of the Constitution to abrogate the Eleventh Amendment immunity of the States.
9 517 U.S. at 72–73. Because the NTSSA constitutes classic Commerce Clause legislation, that
ends the matter. See National Transit Systems Security Act of 2007, Pub. L. No. 110-53,
§ 1403(6), 121 Stat. 266 (Congressional finding that “greater Federal investment in transit
security . . . is necessary . . . given transit’s vital importance in creating mobility and promoting
our Nation’s economy”).
The more difficult question is whether WMATA has waived its immunity. “The test for
determining whether a State has waived its immunity from federal-court jurisdiction is a
stringent one.” Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). “Generally,
[courts] will find a waiver either if the State voluntarily invokes [the court’s] jurisdiction, . . .
or . . . if the State makes a ‘clear declaration’ that it intends to submit itself to [the court’s]
jurisdiction.” Coll. Savings Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S.
666, 675–76 (1999) (citation omitted). A court may also find a waiver when a “suability
provision [is] attached to the congressional approval of” a multistate commission created by
interstate compact. Id. at 686; see also Petty v. Tennessee-Missouri Bridge Comm’n., 359 U.S.
275, 279–80 (1959) (holding that States had waived the sovereign immunity of a bi-state
corporation created by an interstate compact in which Congress had approved a “sue and be
sued” clause); Edelman v. Jordan, 415 U.S. 651, 696 (1974) (Marshall, J., dissenting)
(discussing Petty). Finally, Congress may, pursuant to its spending power, elicit a “‘clear
declaration’ that [a state] intends to submit itself to” suit in federal court as a condition for a
grant of federal funds. Coll. Savings Bank, 527 U.S. at 686; see also Barbour, 374 F.3d at 1163.
“But Congress must exercise its power explicitly: a congressional waiver provision is
constitutional only if it manifests ‘a clear intent to condition participation in the programs funded
10 under the Act on a State’s consent to waive its constitutional immunity.’” Barbour, 374 F.3d at
1163 (quoting Atascadero, 473 U.S. at 247).
In opposing WMATA’s sovereign immunity defense, Plaintiff does not contend that
Virginia, Maryland, and the District of Columbia or the WMATA Compact has waived
WMATA’s immunity from private suit under the NTSSA. Instead, Plaintiff’s argument rests
exclusively on the following syllogism: (1) the CRREA placed the States on clear notice that, by
accepting certain federal grants, they would waive their immunity from suit under “section 504
of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age
Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any
other Federal statute prohibiting discrimination by recipients of Federal financial assistance,”
42 U.S.C. § 2000d-7(a)(1) (emphasis added); (2) the NTSSA defines a “public transportation
agency” to mean “a publicly owned operator of public transportation eligible to receive Federal
assistance” from the Department of Transportation, 6 U.S.C. § 1131(5) (emphasis added), and
subjects “public transportation agenc[ies]” to private suit if they “discriminate against an
employee” who qualifies as a whistleblower, 6 U.S.C. § 1142(a) (emphasis added); (3) WMATA
has received federal grants under 49 U.S.C. §§ 5301–5340; and, therefore, (4) WMATA waived
its sovereign immunity under the CRREA with respect to whistleblower suits under the NTSSA
by accepting federal transportation funding. Dkt. 21 at 12–17. For the reasons explained below,
the Court is unpersuaded.
B. CRREA
In Atascadero State Hospital v. Scanlon, 473 U.S. 234 (1985), the Supreme Court
addressed whether a state hospital was subject to suit for retroactive monetary relief in federal
11 court under Section 504 of the Rehabilitation Act. The relevant provisions of the Rehabilitation
Act, as enacted at the time, provided that:
No otherwise qualified handicapped individual in the United States . . . shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service.
....
The remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available to any person aggrieved by any act or failure to act by any recipient of Federal assistance or Federal provider of such assistance under section 794 of this title.
29 U.S.C. §§ 794–794a (1982). Years earlier, the Supreme Court had recognized an implied
right of action for injunctive relief and damages under Title VI of the Civil Rights Act. See
Cannon v. Univ. of Chi., 441 U.S. 677, 695–703 (1979) (acknowledging Title VI’s implied right
of action in the course of analyzing Title IX). Because Congress extended the remedies available
under Title VI to the Rehabilitation Act, and because the defendant in Atascadero was
undeniably a “recipient of federal aid under the statute,” 473 U.S. at 245–46, it was thus—absent
Eleventh Amendment or other Federalism concerns—subject to suit in federal court under the
Rehabilitation Act.
Such sovereign immunity concerns, however, were ultimately dispositive in Atascadero.
The Supreme Court first held that a provision found in the California constitution waiving
immunity for suits “brought against the State in such manner and in such courts as shall be
directed by law” lacked the clarity required to waive the State’s immunity from suit “in federal
court.” Id. at 241 (first quote quoting Cal. Const. art III. § 5). It then held that the U.S. Congress
did not make “its intention unmistakably clear in the language of the [Rehabilitation Act],” as
required by the Court’s Eleventh Amendment jurisprudence, to abrogate California’s immunity
12 pursuant to Section 5 of the Fourteenth Amendment. Id. at 242. As the Court explained, it is not
enough that Congress authorize suit in federal court against a broad class of potential defendants.
Rather, “[w]hen Congress chooses to subject the States to federal jurisdiction, it must do so
specifically.” Id. at 246. Finally, the Court held that California’s “mere receipt of federal funds”
was insufficient to “establish that [the] State ha[d] consented to suit in federal court.” Id. at 246–
47. Once again, the relevant statutory language lacked the requisite lucidity. The text fell “far
short of manifesting a clear intent to condition participation in the programs funded under the
Act on a State’s consent to waive its constitutional immunity.” Id. at 247.
In response to the Supreme Court’s decision in Atascadero, Congress enacted the
CRREA “to provide the sort of unequivocal waiver” of Eleventh Amendment immunity to suits
under the Rehabilitation Act and other anti-discrimination statutes that Atascadero and other
precedent demanded. Lane v. Pena, 518 U.S. 187, 200 (1996); see Pub. L. No. 99-506, § 1003,
100 Stat. 1807, 1845 (1986). To that end, the CRREA provides:
(1) A State shall not be immune under the Eleventh Amendment of the Constitution of the United States from suit in Federal court for a violation of section 504 of the Rehabilitation Act of 1973, title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, title VI of the Civil Rights Act of 1964, or the provisions of any other Federal statute prohibiting discrimination by recipients of Federal financial assistance.
(2) In a suit against a State for a violation of a statute referred to in paragraph (1), remedies (including remedies both at law and in equity) are available for such a violation to the same extent as such remedies are available for such a violation against any public or private entity other than a State.
42 U.S.C. § 2000d-7(a). As the D.C. Circuit held in Barbour v. Wash. Metro. Area Transit
Auth.—a case involving the same defendant here—the language of the CRREA and the
Rehabilitation Act, taken together, is “undeniably clear about the simple choice offered to states:
if they accept federal funds, they will lose their immunity to Rehabilitation Act suits for
13 discriminatory acts.” 374 F.3d at 1165. “WMATA could have avoided” this result “by declining
to take federal transportation funds,” but because “[i]t chose not to,” it “voluntarily exposed itself
to the suits the [Rehabilitation Act] authorizes.” Id. Although not addressed in Barbour, that
same logic, moreover, applies to suits brought against WMATA under Title IX, the Age
Discrimination Act, and Title VI. See, e.g., Litman v. George Mason Univ., 186 F. 3d 544, 554
(4th Cir. 1999) (relying on 42 U.S.C. § 2000d–7(a)(1) to find waiver of sovereign immunity for
purposes of Title IX); Fryberger v. Univ. of Ark., 889 F.3d 471, 477 (8th Cir. 2018) (same).
Thus, little effort is required to conclude that, by accepting federal transportation funds,
WMATA has voluntarily exposed itself to the suits that those statutes specifically identified in
the CRREA authorize.
Plaintiff’s task here, however, is not so easy because, unlike the Rehabilitation Act, Title
IX, the Age Discrimination Act, and Title VI, the NTSSA is not expressly referenced in the
CRREA, and it is far from clear that the NTSSA qualifies as “any other Federal statute
prohibiting discrimination by recipients of Federal financial assistance.” 42 U.S.C. § 2000d-
7(a)(1). In this context, where “[a] waiver of sovereign immunity must be ‘strictly construed, in
terms of its scope, in favor of the sovereign,’” Sossamon v. Texas, 563 U.S. 277, 292 (2011)
(citation omitted), and where a statute conditioning receipt of federal funding on a waiver of
sovereign immunity must “manifest[] a clear intent” to impose such a condition, Atascadero, 473
U.S. at 247; see also Barbour, 374 F.3d at 1163 (quoting same), that uncertainty is dispositive.
Plaintiff’s argument that the NTSSA falls within the residual clause of the CRREA
appeals to plain language. The CRREA’s residual clause reaches “any other Federal statute
prohibiting discrimination by recipients of Federal financial assistance.” 42 U.S.C. § 2000d-
7(a)(1). The NTSSA is, of course, a federal statute. 42 U.S.C. § 1142. It also makes it unlawful
14 for a covered employer to “discriminate against” a whistleblower: the NTSSA declares that
public transportation agencies “shall not discharge, demote, suspend, reprimand, or in any other
way discriminate against” a covered whistleblower. 42 U.S.C. § 1142(a) (emphasis added).
And, finally, the statute applies to “public transportation agenc[ies],” id., which are defined to
mean “publicly owned operator[s] of public transportation eligible to receive Federal assistance”
from the Department of Transportation, 6 U.S.C. § 1131(5). In short, Plaintiff plausibly posits
that the NTSSA is a “Federal statute prohibiting discrimination by recipients of Federal financial
assistance.” 42 U.S.C. § 2000d-7(a)(1). That contention, moreover, finds some support in the
D.C. Circuit’s Barbour decision, which held that WMATA qualified, within the terms of the
CRREA, as a “recipient of Federal financial assistance” for purposes of suit under the
Rehabilitation Act. 374 F.3d at 1165. If so, one might reasonably wonder why the same
conclusion would not apply for purposes of a “discrimination” claim brought under the NTSSA.
The answer to that question starts with the Supreme Court’s decision in Sossamon v.
Texas, 563 U.S. 277 (2011). In that case, the Supreme Court considered whether the CRREA’s
residual clause placed the States on clear notice that, if they accepted federal funding, they would
waive their immunity from suit under Section 3 of the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”), 42 U.S.C.§ 2000cc et seq. Sossamon, 563 U.S. at 291. The
Court held that it did not, principally because the text of Section 3 of RLUIPA, unlike Section 2
of that Act, “does not prohibit ‘discrimination’” but, rather, “prohibits ‘substantia[l] burden[s]’
on religious exercise.” Id. at 292. Because “a State might reasonably conclude that” the
CRREA’s residual clause “covers only provisions using the term “‘discriminate,’” the Supreme
Court held that the clause did not constitute the sort of unequivocal waiver of sovereign
immunity that Atascadero and other precedent demands. Id.
15 That narrow holding is not dispositive here because, unlike Section 3 of RLUIPA, the
NTSSA does use the word “discriminate.” Compare 42 U.S.C.§ 2000cc-1, with 6 U.S.C.
§ 1142(a). The Court’s broader reasoning, however, points in favor of WMATA’s claim of
immunity. In Sossamon, the Court first questioned, but did not decide, whether “a residual
clause like the one in [the CRREA] could constitute an unequivocal textual waiver.” Id. In
reserving judgment on this question, the Court did not, of course, decide the issue. It did,
however, emphasize that ambiguity or uncertainty is incompatible with a waiver of sovereign
immunity. In addition—and more significantly—the Court applied the ejusdem generis canon of
statutory interpretation applies to CRREA’s residual clause. As the Court explained, “‘[g]eneral
words,’ such as the residual clause here, ‘are construed to embrace only objects similar in nature
to those objects enumerated by the proceeding specific words.’” Id. (quoting Washington State
Dep’t of Soc. and Health Servs. v. Guardianship Estate of Keffeler, 537 U.S. 371, 384 (2003)).
The Court’s application of the ejusdem generis canon in this specific context is significant
because, like other canons, it merely aids in construction and sometimes yields to other textual
clues and considerations. See, e.g., Ali v. FBI, 552 U.S. 214, 227–28 (2008). Although not
inevitable, it is also not surprising that the Court concluded that the canon applies to the CRREA
because the canon tends to limit the reach of the statutory provision at issue and thus promotes
the interest in clarity that otherwise animates the Court’s Eleventh Amendment jurisprudence.
Applying both of these guiding principles here—one, that waivers of sovereign immunity
demand clarity and, two, that the residual clause must be read in light of the “objects” that
precede it—the Court cannot accept Plaintiff’s contention that CRREA’s waiver of sovereign
immunity encompasses private suits to enforce NTSSA’s whistleblower provisions. Each of the
four antidiscrimination statutes enumerated in the CRREA deal with a similar type of
16 transgression and each takes a similar form. Each prohibits discrimination based on a personal
characteristic, and each prohibits that discrimination in any program or activity receiving Federal
financial assistance. Starting with Title VI of the Civil Rights Act of 1964, Congress prohibited
discrimination on the basis of “race, color, or national origin” in “any program or activity
receiving Federal financial assistance.” 42 U.S.C. § 2000d. Eight years later, using identical
language, Congress extended that prohibition to discrimination “on the basis of sex” in “any
educational program or activity receiving Federal financial assistance.” 20 U.S.C. § 1681(a).
The next year, Congress prohibited discrimination based on a person’s disability in “any program
or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a). And, finally, in 1975,
Congress followed the same model and prohibited discrimination “on the basis of age” in “any
program or activity receiving Federal financial assistance.” 42 U.S.C. § 6102. Significantly, the
CRREA’s residual clause employs a similar locution, referring to “other federal statutes” that
prohibit discrimination by recipients of “Federal financial assistance.” 42 U.S.C. § 2000d-
7(a)(1).
Although the NTSSA does use the word “discriminate,” and although it regulates
agencies eligible to receive federal funds, those superficial parallels are the extent of its
similarities with the statutes enumerated in the CRREA. Unlike the enumerated statutes, the
NTSSA was not enacted to ensure equal access to the benefits of federally funded programs but,
rather, “to implement the recommendations of the National Commission on Terrorist Attacks
Upon the United States, also known as the 9/11 Commission.” Duncan v. Wash. Metro. Transit
Auth., 174 F. Supp. 3d 123, 127 (D.D.C. 2016) (citing Pub. L. No. 110-53, tit. XIV, 121 Stat.
266, 400 (2007)). The purpose of the whistleblower provision is not to prevent invidious, class-
based discrimination but, rather, to “protect [public transit] employees from adverse employment
17 impacts due to whistleblower activities related to [transit] security.” Id. (quoting H.R. Rep. No.
110-259, at 348 (July 25, 2007), as reprinted in 2007 U.S.C.C.A.N. 119, 180)). The provision is
not modeled on Title VI or any other civil rights law but, rather, is drawn from similar
protections available to railroad, 49 U.S.C. § 20109, and aviation employees, 49 U.S.C. § 42121.
See also H.R. Rep. No. 110-259, at 348 (2007) (Conf. Rep.) (noting that § 20109 protects
“railroad employees from adverse employment impacts due to whistleblower activities”). And
the NTSSA does not prohibit discrimination in programs that receive federal funding but, rather,
applies more generally to agencies “eligible to receive Federal financial assistance,” 6 U.S.C. §
1131(5) (emphasis added), regardless of whether they actually receive any such funding in a
given year.1
Given these important differences, the Court cannot conclude that the NTSSA is “similar
in nature” to the enumerated statutes. Sossamon, 563 U.S. at 292 (quoting Washington State
Dep’t of Soc. and Health Servs., 537 U.S. at 384). Each of the enumerated statutes prohibits
class-based discrimination—that is, discrimination based on a personal characteristic, such as
race, national origin, age, sex, or disability. Each is fairly described as a civil rights statute—the
presumptive target of the Civil Rights Remedies Equalization Act. See 132 Cong. Rec. 28,623
(1986) (statement of Sen. Alan Cranston) (CRREA “make[s] clear that the States may be held
1 Although one might argue that Congress intended to cover only those state or local agencies that actually receive federal financial assistance, that contention is tested by the fact that the two statutes on which the NTSSA is modeled—49 U.S.C. § 20109 and 49 U.S.C. § 42121—apply to “railroad carrier[s]” and “air carrier[s]” respectively without regard for whether they receive federal funding. See 49 U.S.C. § 20102(3) (defining “rail carrier” for the purposes of § 20109); id. § 40102(a)(2) (defining “air carrier” for the purposes of § 42121). One might also argue that the distinction between those who are eligible to receive federal funding and those who actually receive such funding is immaterial in a case, such as this one, where the state entity did, in fact, receive federal funding. But the relevant question for present purposes is simply whether the NTSSA is similar to the enumerated statutes, and this distinction bears on that question. 18 accountable in Federal court for injuries they inflict on disabled persons, women, members of
minority groups, and older person[s] through violations of such [civil rights] statutes.”). And
each ensures that the benefits of federally funded programs are equally available to all,
regardless of their race, national origin, sex, or disability. The NTSSA, in contrast, is a public
safety statute, designed to ensure that employees of public transportation agencies and their
contractors and subcontractors are not dissuaded from flagging potential violations of federal
safety or security rules (or the abuse of Federal grants intended for public safety or security)
committed by their employers or their co-workers. Although the NTSSA uses the word
“discriminate,” it does so in very different manner than the CRREA and the enumerated statutes.
In the NTSSA, the term rounds out a list of adverse employment actions: “discharge, demote,
suspend, reprimand, or in any other way discriminate against,” 6 U.S.C. § 1142(a) (emphasis
added), all prohibited in service of the statutory goal of promoting public safety. In the CRREA
and the enumerated statutes, in contrast, discrimination is itself the iniquity that the statute seeks
to prevent. That difference, and the other discrepancies highlighted above, are likely sufficient
to conclude, without more, that the CRREA’s residual clause is not best construed to cover the
NTSSA. See Clemes v. Del Norte Cty. United Sch. Dist., No. C-93-1912, 1996 WL 331096, at
*6 (N.D. Cal. May 28, 1996) (concluding that although a provision in the False Claims Act “uses
the term ‘discrimination’” it was not “within the ambit of” § 2000d-7(a)(1)’s residual clause
because its purpose is to “address[] fraud,” whereas the purposes of the enumerated statutes is to
prohibit discrimination on the basis of particular characteristics). But, given sovereign immunity
doctrine’s demands of clarity, the conclusion is inescapable that the CRREA could not facilitate
WMATA’s waiver of its sovereign immunity to claims under the NTSSA.
19 C. WMATA Policy
In a final effort to overcome this conclusion, Plaintiff notes that WMATA “instituted its
own policy expressing its intention to be bound by the NTSSA,” confirming, in Plaintiff’s view,
that WMATA was on notice that it would waive its sovereign immunity by accepting federal
funds and that it intended to accept that bargain. Dkt. 21 at 17. Plaintiff is correct that a
WMATA policy, apparently approved by the WMATA Board of Directors, acknowledges that
WMATA is subject to the NTSSA and that its officers and employees may not “discharge,
demote, suspend, reprimand, or in any other way discriminate against an [e]mployee for
engaging in activity that is protected under the NTSSA.” Dkt. 21-1 at 22. The policy further
affirms that “[t]he Board is responsible to ensure that [WMATA] is complying with the NTSSA
and any other federal law, rule, or regulation relating to public transportation safety or security,
or fraud, waste, or abuse of federal grants or other public funds intended to be used for public
transportation safety or security.” Id. at 23. Finally, the policy provides an internal enforcement
mechanism, which contemplates an investigation by the Office of the Inspector General and an
appeal to an internal panel, while preserving WMATA employee’s “access to other applicable
processes for redress” under “applicable federal law, another [WMATA policy] or grievance
procedure under applicable collective bargaining agreements.”2 Id. at 28.
2 Plaintiff does not argue that this WMATA policy itself functioned to waive WMATA’s sovereign immunity, and, in any event, such an effort would prove unavailing. By now, it almost goes without saying a waiver of sovereign immunity requires a “‘clear declaration’ by the State,” Sossamon, 563 U.S. at 284 (quoting Coll. Savings Bank, 527 U.S. at 680), including a declaration of “the State’s intention to subject itself to suit in federal court,” Atascadero, 473 U.S. at 241 (emphasis in original). Here, however, the policy makes no mention of suit in any court—state or federal. Dkt. 21-1 at 28. To be sure, the policy acknowledges WMATA’s obligation to comply with federal law. But that is not the same thing as a waiver of immunity from private suit to enforce that obligation.
20 Plaintiff’s argument, however, fails to grasp the distinction between WMATA’s
obligation to comply with federal laws, including the NTSSA, and its immunity from private suit
in the absence of a sufficient waiver or abrogation of that immunity. The Court has no doubt that
the NTSSA applies to WMATA and that it prevents WMATA from taking adverse action against
covered whistleblowers. WMATA is duty-bound to comply with the statute, regardless of
whether it is subject to suit for its failure to do so. Indeed, the WMATA Compact is clear:
WMATA is subject to local and federal “laws, rules, regulations and orders relating
to . . . safety.” WMATA Compact, Art. XVI, § 77; D.C. Code § 9-1107.01. Nothing in the
Eleventh Amendment or broader concepts of sovereign immunity relieves WMATA of its
obligation to comply with federal law. To the contrary, “[t]he States and their officers are bound
by obligations imposed by the Constitution and by federal statutes that comport with the
constitutional design,” including the Supremacy Clause, U.S. Const. Art. IV, and courts should
not “assume [that] the States will refuse to honor the Constitution or [to] obey the binding laws
of the United States.” Alden v. Maine, 527 U.S. 706, 755 (1999). Against this background, it is
appropriate that a WMATA policy demands that its officers and employees comply with the
NTSSA. But that undertaking—or recognition of an existing obligation—has no bearing on
WMATA’s immunity from private suit.3
* * *
3 Given this conclusion, the Court need not consider or decide whether WMATA is bound to comply with the administrative enforcement processes established in the NTSSA, see 6 U.S.C. § 1142(c), including whether those processes are so similar to civil litigation that principles of sovereign immunity attach, see FMC v. South Carolina State Ports Auth., 535 U.S. 743, 756–64 (2002), or whether the WMATA Compact overcomes any such immunity by subjecting WMATA to the “force and effect” of federal “laws, rules, regulations and orders relating to . . . safety,” WMATA Compact, Art. XVI, § 77; D.C. Code § 9-1107.01.
21 For all of these reasons, the Court concludes that nothing contained in the CRREA or the
NTSSA has effected a waiver of WMATA’s sovereign immunity and that, because Plaintiff has
failed to identify or to invoke any other waiver or abrogation of sovereign immunity, the Court
lacks jurisdiction over Plaintiff’s claims.4
CONCLUSION
For the foregoing reasons, the Court will GRANT Defendant’s motion for summary
judgment, Dkt. 19, and will DISMISS the complaint without prejudice for lack of subject-matter
jurisdiction.
A separate order will issue.
/s/ Randolph D. Moss RANDOLPH D. MOSS United States District Judge
Date: December 5, 2019
4 Although Plaintiff requests certain prospective, non-monetary relief—that is, “expungement of any and all references to the adverse actions” taken against him—he has not brought an action under Ex parte Young, 209 U.S. 123 (1908), against an appropriate official, and therefore, at least as the case is currently pled, the Court lacks jurisdiction to adjudicate even that narrow claim for relief, cf. Flint v. Dennison, 488 F.3d 816, 825 (9th Cir. 2007).