Unsuck Dc Metro v. Wash. Metro. Area Transit Auth.

MEMORANDUM OPINION

CARL J.NICHOLS, UNITED STATES DISTRICT JUDGE

Following oral argument in Plaintiff's appeal of the Order granting Defendants' Motion to Dismiss or, in the Alternative, for Summary Judgment, see ECF Nos. 13, 14, the Court of Appeals remanded the record and directed this Court “to determine whether a cause of actions exists for [Plaintiff's] Public Access to Records Policy (“PARP”) claim, ” and in particular “whether the Washington Metropolitan Area Transit Authority (“WMATA”) Compact, Pub. L. No. 89-774, 80 Stat. 1324 (1966), or any relevant statute creates a cause of action, and whether WMATA has authority to provide for judicial review of its decision to deny a request for records pursuant to the PARP. See Alexander v. Sandoval, 532 U.S. 276, 291 (2001) (“Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”).” ECF No. 18. As discussed below, WMATA has repeatedly and expressly waived any argument that no such cause of action exists, and since this question does not go to the Court's jurisdiction, the Court need not reach it before deciding other merits issues. But to address the Court of Appeals' mandate directly: neither the Compact nor any other statute

directly creates a cause of action for Plaintiff, but there are several plausible alternative sources of a cause of action.

I. Background

A. WMATA & PARP

WMATA was founded in 1967 after Congress “consent[ed] to, adopt[ed] and enact[ed]” an interstate transit authority compact among the District of Columbia, Maryland, and Virginia. Virginia, Maryland and District of Columbia, compact., Pub. L. No. 89-774, 80 Stat. 1324, 1324 (1966) (hereinafter “WMATA Compact”); see generally D.C. Code § 9-1107.01; Md. Code Ann. Transp. § 10-204; Va. Code Ann. § 33.2-3100. The WMATA Compact grants jurisdiction to the federal district courts over “all actions” in which WMATA is a party. See WMATA Compact, 80 Stat. 1324, 1350 (“The United States District Courts shall have original jurisdiction, concurrent with the Courts of Maryland, Virginia and the District of Columbia, of all actions brought by or against the Authority.”). The Compact also expressly recognizes that suits involving WMATA can be removed to federal court: “Any such action [in which WMATA is a party] shall be removable to the appropriate United States District Court.” Id.

In 2000, WMATA first adopted PARP, making certain public records available for public inspection. See PARP § 12.0. The current version of PARP requires WMATA to “interpret and apply [it] consistent with the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552, and federal practice, including when determining whether to waive exemptions.” Id. § 1.0. And it “make[s] official public records, including electronic records, available to the public for inspection and copying to the greatest extent possible unless exempted from disclosure by a provision” within the policy. Id. “All records received or generated by WMATA, its officers, employees[, ] and agents in and through the regular course of WMATA's business, and in WMATA's control at the

time of the response . . . unless such records are published and are offered for sale by WMATA” are within PARP's scope. Id. § 3.0.

PARP also includes a process for challenging the denial of a request for records. In particular, Section 9 of PARP outlines the administrative appeal process for PARP requests. A “requester” may seek an administrative review of a denial by filing a written appeal to the Chief of Staff, and the appeal will be heard by a Panel consisting of the Chief of Staff, General Counsel, and the Assistant General Manager of the Official Custodian or their respective designees. Id. §§ 9.1.1, 9.1.3. If the appeal is denied, PARP also provides for “the right to judicial review” after exhaustion of the administrative appeal process. Id. § 9.1.5; id. § 9.2.1 (“A requester must exhaust the administrative appeal process, before seeking judicial review of a denial of request for records or a fee waiver.”). PARP then permits a “[r]equester” to “bring a civil action” for judicial review, id. § 9.2, but limits the remedies to injunctive relief or a declaratory judgment, id. § 9.3.1, explains when and where the action may be filed, § 9.3.2, and describes the available relief and the effect of certain findings, id. § 9.3.3-9.3.7.

B. Prior Proceedings

In April 2018, Plaintiff Unsuck DC Metro requested a copy of WMATA's recent customer satisfaction survey. Compl. ¶ 10. After denials and administrative appeals, WMATA ultimately decided to redact all but one page of the survey. See Compl. ¶¶ 10-17. Unsuck then filed this suit. In Count I of its Complaint, Unsuck asserted, inter alia, that Defendants had committed a “[V]iolation of PARP” by “unlawfully withholding most information contained within” the contested report. Compl. ¶¶ 18-22, ECF No. 1.

As relevant here, in their Motion to Dismiss or, in the Alternative, for Summary Judgment, Defendants did not argue that PARP does not provide a cause of action. Defendants' Motion to Dismiss at 10, ECF No. 8 (“Defs. Mot.”). Defendants did seek to dismiss Count I on the grounds

that as an unincorporated corporation Plaintiff lacked capacity to sue; and they also sought to dismiss Count I “insofar as it relies on the Declaratory Judgment Act” because, as is well-established, a declaratory judgment is a form of relief, not a cause of action. Defs. Mot. at 10; see Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 671 (1950); Metz v. BAE Sys. Tech. Sols. & Servs. Inc., 774 F.3d 18, 25 n.8 (D.C. Cir. 2014) (“The Declaratory Judgment Act . . . does not provide a cause of action”) (quotation omitted). As for Plaintiff's APA claim, Defendants argued that WMATA is not a federal agency subject to the APA, but in any event, even assuming WMATA were subject to the APA, the APA would be “inapplicable because the PARP supplies an adequate remedy for Unsuck.” ECF No. 8 at 12; see 5 U.S.C. § 704 (providing that the APA applies to ‘[a]gency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court.') (emphasis supplied).” Defendants also moved for summary judgment on Count I, contending that their withholding of the records was a proper application of the deliberative process privilege.

In response to Defendants' Motion, Plaintiff argued that “the cause of action in Count I is based on PARP.” Pl. Resp. to Defs. Mot. at 3, 4. And in their reply brief, Defendants reiterated their argument that the APA is inapplicable here because “PARP provides an adequate remedy, ” and did not argue that PARP does not provide a cause of action. Defs. Reply at 7, 8-9.

At oral argument on Defendants' Motion, the Court sought to confirm that Defendants were not contesting the existence of a cause of action under PARP. In particular, the Court asked:

So assuming they have capacity to sue on the PARP claim .. am I right, you don't have any other threshold arguments on the PARP claim? And the PARP claim, [WMATA] concedes, can be brought by someone with capacity to sue. There's a cause of action under PARP against WMATA, there is subject matter jurisdiction for such a claim against [WMATA]. And so the question-again, putting aside the capacity to sue-is the summary judgment argument about whether the documents are properly withheld under the PARP exemptions, correct?

Tr. 5 (Jan 21, 2020) (emphases added). To which Defendants replied “Yes. That's right, Your Honor.” Id.

The Court issued an Order dismissing Counts II-IV, and granting summary judgment to WMATA on Count I, Unsuck's PARP claim. Order of May 21, 2020, ECF No. 14. Plaintiff appealed that Order, and after oral argument, the Court of Appeals remanded the case, directing the Court to determine:

[W]hether a cause of action exists for Unsuck DC Metro's Public Access to Records Policy (“PARP”) claim. Specifically, the district court shall consider whether the Washington Metropolitan Area Transit Authority (“WMATA”) Compact, Pub. L. No. 89-774, 80 Stat. 1324 (1966), or any relevant statute creates a cause of action, and whether WMATA has authority to provide for judicial review of its decision to deny a request for records pursuant to the PARP. See Alexander v. Sandoval, 532 U.S. 276, 291 (2001) (“Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not.”).

Order of the Court of Appeals, ECF No. 18. On remand, the Court instructed the Parties to submit supplemental briefing on those issues, as well as on “whether WMATA has waived the argument that no cause of action exists.” ECF No. 18.

In its supplemental brief, Plaintiff argues that-notwithstanding its allegations in Count I of its Complaint and its prior briefing-that “[u]pon closer analysis, it does not appear that the WMATA Compact or any other statute creates a cause of action for Plaintiff's PARP claim.” Pl. Supp. Br. at 2. For support, Plaintiff relies on a decision from another Judge of this Court that rejected the existence of a cause of action for violations of WMATA's procurement regulations. See Schindler Elevator Corp. v. WMATA, 514 F.Supp.3d 197, 207-12 (D.D.C. 2020), aff'd, 16 F.4th 294 (D.C. Cir. 2021). Plaintiff further argues that caselaw suggests WMATA cannot create a cause of action, citing Alexander v. Sandoval, 532 U.S. 275. 291 (2001). Plaintiff admits “WMATA did not raise any objection concerning the cause of action issue” but states that it is an

“open question” whether...