353 F. Supp. 3d 1
D.C. Cir.2019Background
- Slack was a WMATA Capital Analyst; Mewborn was her supervisor overseeing CIP 0027 (a track interlocking/switch project).
- Mewborn proposed Slack be sole contact for CIP 0027; Slack objected, asserting the plan would violate internal-control/legal obligations.
- Mewborn issued a written warning criticizing Slack (including an allegation she used confidential coworker salary info); WMATA later revised the memorandum and then terminated Slack weeks later.
- Slack sued WMATA for unlawful retaliation under multiple statutes (FCA, DC WPA, ARRA, NDAA) and sued Mewborn for defamation; prior opinion dismissed FCA and DC WPA claims based on sovereign immunity.
- This opinion addresses WMATA’s summary-judgment motion on remaining claims: ARRA whistleblower claim, NDAA whistleblower claim, and Mewborn’s defamation claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether WMATA waived Eleventh Amendment immunity as to ARRA whistleblower claims | WMATA voluntarily waived immunity by agreeing to comply with ARRA, advertising ARRA rights to employees, and accepting ARRA funds | Congress did not abrogate immunity; no clear waiver exists unless WMATA made an unequivocal declaration | Waiver found: WMATA’s conduct (Master Agreement compliance + internal whistleblower policy + acceptance of funds) demonstrates a clear waiver; ARRA claim survives summary judgment |
| Whether record establishes CIP 0027 used ARRA-covered funds (precluding summary judgment) | Slack contends uncertainty in WMATA’s records creates a genuine dispute about ARRA funding for CIP 0027 | WMATA submits affidavit saying CIP 0027 did not receive ARRA funds and project funding records | Genuine factual dispute exists about funding sources; WMATA failed to show absence of a genuine issue of material fact on ARRA-funding element |
| Whether WMATA is subject to NDAA whistleblower claims (sovereign immunity) | Slack argues federal regulations (2 C.F.R. §200.300(b)) incorporate NDAA protections into award conditions and thus WMATA waived immunity | WMATA and court: Congress did not unequivocally abrogate nor condition funding on waiver here; a regulation alone cannot effect the requisite congressional waiver | Dismissed for lack of jurisdiction: NDAA claim barred by sovereign immunity because Congress did not abrogate and WMATA did not clearly waive immunity under NDAA |
| Whether Mewborn is liable for defamation for the written warning | Slack contends Mewborn acted with malice and the statements were defamatory (false allegation of misconduct) | Mewborn argues absolute immunity for discretionary official acts and, alternatively, qualified privilege/consent to communicate performance matters | Summary judgment for Mewborn: absolute official-immunity applies; qualified privilege (consent) also protects the statements and no reasonable jury could find malice |
Key Cases Cited
- Barbour v. Wash. Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) (standard for finding waiver of Eleventh Amendment immunity by state entity)
- College Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (U.S. 1999) (presumption against waiver; conditions on federal funds must be clear)
- Dellmuth v. Muth, 491 U.S. 223 (U.S. 1989) (abrogation of sovereign immunity requires unmistakable clarity)
- Duncan v. Wash. Metro. Area Transit Auth., 214 F.R.D. 43 (D.D.C. 2003) (receipt of federal funds alone does not show consent to suit)
- Association of Private Sector Colleges & Universities v. Duncan, 681 F.3d 427 (D.C. Cir. 2012) (regulations applied where statute conditioned participation on compliance with regulatory criteria)
- Beebe v. Wash. Metro. Area Transit Auth., 129 F.3d 1283 (D.C. Cir. 1997) (limits on official-immunity for intentional torts committed in the scope of employment)
- Wallace v. Skadden, Arps, Slate, Meagher & Flom, 715 A.2d 873 (D.C. 1998) (qualified privilege/consent to publish employee performance information; malice required to defeat privilege)
- Morris v. Wash. Metro. Area Transit Auth., 781 F.2d 218 (D.C. Cir. 1986) (WMATA inherited sovereign immunity from compacting jurisdictions)