UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


GRIGGS, HULLON

v.

WMATA


00-7108a

D.C. Cir. 2000


*	*	*


Rogers, Circuit Judge: In this interlocutory appeal, the  court
addresses whether an employee of the Washington  Metropolitan Area
Transit Authority ("WMATA") is absolute- ly immune from suit for
negligent conduct arising during the  course of making an arrest. As a
result of his arrest, Hullon  Griggs sued WMATA and Metro Transit
Police Officer Doug- las Haymans, as well as the D.C. Metropolitan
Police Depart- ment, alleging in part that Officer Haymans negligently
failed  to control his police dog in the course of arresting Griggs. 
The district court denied Officer Haymans' motion to dismiss  the
complaint on the ground of absolute immunity, and,  alternatively, for
summary judgment on the ground that the  complaint was barred by the
one-year statute of limitations  for assault and battery. Because the
WMATA Compact, D.C.  Code s 1-2431 et seq. (1981), provides that
Officer Haymans'  conduct in arresting Griggs was subject to the laws
applicable  to a member of the D.C. Metropolitan Police Department,
and  because Officer Haymans' statute of limitations defense is 


I.


According to the complaint,1 the D.C. Metropolitan Police  Department
contacted the WMATA Transit Police in the  early morning hours of May
26, 1996, for the assistance of a  canine unit in responding to a
"burglary two in progress" at 




__________

n 1 In reviewing the denial of a motion to dismiss on the ground  of
immunity, the court must treat the allegations of the complaint as 
true. See United States v. Gaubert, 499 U.S. 315, 327 (1991) (citing 
Berkovitz v. United States, 486 U.S. 531, 540 (1988)); Schuler v. 
United States, 617 F.2d 605, 608 (D.C. Cir. 1979).


the Madison Grocery store in Northwest, Washington, D.C.  Metro Transit
Police Officer Douglas Haymans and a police  dog named "Buddy"
responded to the scene. Upon their  arrival, Officer Haymans released
the dog into the Madison  Grocery to search for the suspect. The dog
located Hullon  Griggs, who was asleep. When Griggs awoke, the dog's
paws  were on his head. As Griggs attempted to push the dog  away, the
dog began biting Griggs' right arm.


At this point, Officer Haymans entered the grocery store  and ordered
Griggs to stand and place his hands on his head.  Griggs explained to
Officer Haymans that the dog was biting  him while he was on the
ground, and that his efforts to push  the dog away had failed. Officer
Haymans pulled the dog  away from Griggs and again ordered him to
stand and place  his hands over his head. Griggs complied immediately.
Offi- cer Haymans then released the dog and commanded him to  attack
Griggs. Griggs again made attempts to push the dog  away, but the dog
continued to attack him, inflicting multiple,  serious wounds on
Griggs' arms, legs, and torso. Instead of  commanding the dog to stop,
Officer Haymans ordered  Griggs to stay still and allowed the dog to
continue to attack  him. Then, Officer Haymans ordered Griggs to drop
to his  knees and place his hands on his head. Griggs complied, and 
Officer Haymans handcuffed him and pushed his head to the  ground,
during which time the dog continued to attack  Griggs. Officer Haymans
finally commanded the dog to stop  his attacks. As Officer Haymans
picked up Griggs, Griggs  complained that the dog had injured him.


Officer Haymans then took Griggs outside of the grocery  store, at
which point a D.C. Metropolitan Police officer asked  what had
occurred inside. Officer Haymans responded that  the dog "had not
worked out in a while" and "he needed it."  Griggs was transported to
the Fourth District Headquarters  by D.C. Metropolitan Police where
Officer Haymans photo- graphed Griggs' injuries and commented that the
dog "got a  good workout." Griggs was thereafter taken to D.C. General
 Hospital for treatment of the dog bites and then to the D.C.  Jail
for processing for unlawful entry, attempted theft, and  burglary.
Later, on two separate occasions while on his way 


to court, Griggs fainted and was transported to D.C. General  Hospital.
After his arraignment and release, Griggs contin- ued to suffer from
the injuries inflicted by the dog. On May  31, 1996, he called "911"
and was transported to Howard  County General Hospital where he was
admitted for "infected  hematoma secondary to dog bite" and where he
remained  hospitalized until June 5, 1996.


On May 24, 1999, almost three years later, Griggs filed a  complaint in
the D.C. Superior Court alleging negligence by  WMATA and Officer
Haymans for failure to control the police  dog and by the D.C.
Metropolitan Police Department for  improper supervision. On June 15,
1999, the case was re- moved to the United States district court
pursuant to s 81 of  the Compact. See D.C. Code s 1-2431(81) (1981).
As rele- vant here, WMATA and Officer Haymans moved to dismiss  the
complaint on the ground of absolute immunity under s 80  of the
Compact for claims involving governmental functions,  see id. s
1-2431(80), and alternatively, for summary judgment  on the ground
that the complaint was barred by the one-year  statute of limitations
for assault and battery. See id.  s 12-301(4). The district court
denied the motion. On re- consideration, the district court granted
WMATA's motion on  the ground of absolute immunity, citing Burkhart v.
WMA- TA, 112 F.3d 1207, 1216-17 (D.C. Cir. 1997), but denied  Officer


II.


On appeal, Officer Haymans contends that the district  court erred in
rejecting his claim of absolute immunity be- cause he was acting at
all times within the scope of his  employment and because his police
activity constituted a  "quintessentially governmental" function. He
relies on the  statement in Beebe v. WMATA, 129 F.3d 1283 (D.C. Cir. 
1997), that WMATA employees "enjoy absolute immunity  from state-law
tort actions when the conduct at issue falls  'within the scope of
their official duties and the conduct is  discretionary in nature.' "
Id. at 1289. Officer Haymans also  contends that the district court
erred in ruling that the 


complaint was not barred under D.C. Code s 12-301(4),  which provides a
one-year statute of limitations for excessive  force claims. Because
Officer Haymans' statute of limitations  contention is meritless
inasmuch as Griggs' complaint sounds  in negligence for which there is
a three-year statute of  limitations, see id. s 12-301(8), as well as
in intentional tort  for which there is a one-year statute of
limitations, see  McCracken v. Walls-Kaufman, 717 A.2d 346, 350-53
(D.C.  1998); Etheredge v. District of Columbia, 635 A.2d 908, 918 
(D.C. 1993),2 we turn to Officer Haymans' immunity claim.


In Beebe, the court addressed whether WMATA employees  have immunity
when WMATA itself is immune because the  alleged tort occurred during
the exercise of governmental or  discretionary functions. See Beebe,
129 F.3d at 1288. Beebe,  a former WMATA employee, filed suit against
his former  supervisors for, among other things, breach of contract
and  constructive discharge, fraud, gross negligence, and defama-
tion, in connection with their implementation of an office 
reorganization that expanded Beebe's responsibilities. See  id. at
1286. As a result of his unsatisfactory performance in  the new
position, his supervisors eliminated that position and  created a new
equally-ranked position. See id. Beebe was  not selected for that
position, however, but was instead  selected for a lesser position,
causing his office ranking to  drop. See id. Because s 80 of the
Compact, which provides  immunity to WMATA only where torts are
committed in the  course of governmental functions, is silent on the
scope of  WMATA employees' immunity when WMATA itself is im- mune, the
court looked to the federal common law. See id. at  1288. Applying the
distinction between discretionary and  ministerial functions, as
articulated in Westfall v. Erwin, 484  U.S. 292 (1988), the court held
that the WMATA supervisors,  whom Beebe did not allege had acted
outside the scope of  their duties, were immune from suit insofar as




__________

n 2 The statute of limitations contention is properly before the court 
in this interlocutory appeal. See Kiska Constr. Corp.-U.S.A. v. 
WMATA, 167 F.3d 608, 611 (D.C. Cir. 1999); Gilda Marx, Inc. v. 
Wildwood Exercise, Inc., 85 F.3d 675, 679 (D.C. Cir. 1996).


implementing the office reorganization, "lying at the core of  [their]
official responsibilities," were discretionary in nature.  Beebe, 129
F.3d at 1289. The court also observed that:


not all intentional or malicious torts committed in the  normal course
of employment necessarily fall within the  scope of official duties.
Officials "exceed the outer pe- rimeters of their responsibilities,
and act manifestly be- yond their line of duty," for example, "when
they resort  to physical force to compel the obedience of their mana-
gerial subordinates ... or when they use false threats of  criminal
charges to coerce an employee into resigning.


Id. (quoting McKinney v. Whitfield, 736 F.2d 766, 771-72  (D.C. Cir.
1984), and citing Bishop v. Tice, 622 F.2d 349, 359  (8th Cir.


The district court applied Beebe's instruction to look to  federal
common law when it concluded, under Westfall, that  although Griggs
conceded that Officer Haymans was acting  within the scope of his
employment, an individual transit  officer's conduct in making an
arrest is a ministerial function  for which he may be held liable. The
district court also  looked to Dellums v. Powell, 566 F.2d 216 (D.C.
Cir. 1977).  In Dellums the court observed that Carter v. Carlson, 447
 F.2d 358, 366 (D.C. Cir. 1971), rev'd in part on other grounds  sub
nom. District of Columbia v. Carter, 409 U.S. 418 (1973),  as well as
Wade v. District of Columbia, 310 A.2d 857, 860  (D.C. 1973),
"recognized that the arrest function involved  discretion in the
ordinary sense but not discretion in the  policymaking sense, which is
the interest protected by munici- pal immunity." Dellums, 566 F.2d at
223 n.25. The court  had explained in Carter, that "the law is clear
that an  arresting officer has no immunity from suit for torts commit-
ted in the course of making an arrest", 447 F.2d at 362-63,  even
though "a high degree of discretion is clearly involved in  deciding
when and how to make an arrest...."3 Id. at 363 




__________

n 3 In Carter, the plaintiff sued a member of the D.C. Metropoli- tan
Police Department for assault and battery when the officer  allegedly
beat him after arresting him without probable cause. See  447 F.2d at
360-61.


n.9. Accordingly, the district court reasoned that, absent  federal
common law dictating otherwise, "it is inappropriate  to conflate
discretionary police activity, from which liability  WMATA is
shielded, with ministerial arrest activity, from  which liability
individual police officers are not necessarily  shielded." The
district court ruled that "[t]he facts as alleged  [in the complaint]
support the inference that [Officer Hay- mans] may have crossed the
line from official duty to illicit  brutality or otherwise performed
negligently in his supervi- sion and use of [the dog]," and thus
Officer Haymans was not  entitled to absolute immunity.4


The correctness of the district court's legal conclusion is 
demonstrated upon consideration of the WMATA Compact  itself. That
Compact, executed by Virginia, Maryland, and  the District of
Columbia, and approved by Congress in 1966,  originally gave the WMATA
transit police very limited police  powers, reserving the vast
majority of police work for each  member jurisdictions' own police
forces. See D.C. Code  s 1-1431(76) (1967); see also Hall v. WMATA,
468 A.2d 970,  971 (D.C. 1983). However, in 1976 Congress amended s
76,  expanding the police powers of the transit police so that they 
supplemented area police forces and supervised bus and rail  service.
Section 76(b) provides in relevant part that:


[a] member of the Metro Transit Police shall have the  same powers,
including the power of arrest, and shall be  subject to the same
limitations, including regulatory limi- tations, in performance of his
or her duties as a member  of the duly constituted police force of the
political subdi- vision in which the Metro Transit Police member is 
engaged in the performance of his or her duties.




__________

n 4 In originally denying the motion to dismiss on the ground of 
immunity, the district court noted that "the parties have not prof-
fered evidence of the standard of permissible police action for the 
court to determine, as a matter of law, whether Officer Haymans  acted
beyond the bounds of his official duties." Assuming the  parties had
done so, the district court concluded that the allegations  in the
complaint, if true, would "preclude dismissal at this phase [of  the


D.C. Code s 1-2431(76(b)) (1981). Thus, in the District of  Columbia, a
Metro Transit Police officer engaged in a crimi- nal investigation and
an arrest has the same powers and  limitations as a member of the
District of Columbia Metropol- itan Police Department, and
consequently has only qualified  immunity for his torts.


The court explained in Biscoe v. Arlington County, 738  F.2d 1352, 1362
(D.C. Cir. 1984), that in the District of  Columbia, "both official
and governmental immunity depend  on the ministerial-discretionary
dichotomy." A ministerial  function is one that "connotes the
execution of policy as  distinct from its formulation." Id. (quoting
Elgin v. District  of Columbia, 337 F.2d 152, 154-55 (D.C. Cir.
1964)). Thus,  conducting felony stops and felony pursuits are
ministerial,  not discretionary, acts because they are day-to-day
operation- al matters, not matters related to planning and policy. See
 id. A police officer's conduct in connection with conducting  an
investigation with an eye toward making an arrest is  ministerial,
even if his on-the-scene decision to act originally,  e.g., to stop a
car, is discretionary. See id. In reaching this  conclusion, the court
noted that a police officer is constrained  by both regulations and
clearly established policies and stan- dards such that there is no
need to be concerned that tort  liability for such actions would "pose
threats to the quality  and efficiency of government." Id. (quoting
Spencer v. Gen- eral Hosp. of D.C., 425 F.2d 479, 482 (D.C. Cir.
1969)). In  contrast, a discretionary act is one for which an officer
is  immune: "If policy considerations were involved and no stat- utory
or regulatory requirements limited the exercise of  policy discretion,
... immunity would bar suit." Id. at 1362  (quoting Chandler v.
District of Columbia, 404 A.2d 964, 966  (D.C. 1979)). Finally, the


there are certain decisions made in the exercise of the  discretionary
functions of government for which there is  no reason to believe a
jury would render a sounder  decision than those officials chosen,
qualified, and pre- pared to make them. It is these that are labeled
"discre- tionary" and which constitute policy decisions deemed  immune
from suit because there is no legal standard by 


which a judge or jury could gauge their arbitrariness and 
capriciousness or lack thereof.


Id. at 1363 (quoting Chandler v. District of Columbia, 404  A.2d at
966).


A member of the D.C. Metropolitan Police Department,  therefore, is not
absolutely immune from suit for his tortious  conduct. See McCarthy v.
Kliendeinst, 741 F.2d 1406, 1409  (D.C. Cir. 1984) (citing Apton v.
Wilson, 506 F.2d 83, 90-95  (D.C. Cir. 1974)). It necessarily follows
that while s 80 of the  Compact cloaks WMATA itself with absolute
immunity for  torts arising in the exercise of governmental functions,
under  s 76(b) of the Compact, WMATA's Metro Transit Police  officers,
like members of the D.C. Metropolitan Police De- partment, are not
able to invoke such absolute immunity as a  bar to suit for their
torts in the District of Columbia. Officer  Haymans can find no solace
in cases allowing a Metro Transit  Police officer to invoke absolute
immunity for alleged false  arrest, false imprisonment, and malicious
prosecution when  the officer had probable cause to make the arrest
and acted  with "a good faith, reasonable belief" that the arrestee
had  violated the law. Stebbins v. WMATA, 495 A.2d 741, 743  (D.C.
1985) (quoting Gabrou v. May Dep't Stores Co., 462  A.2d 1102, 1104
(D.C. 1983)); see also Dant v. District of  Columbia, 829 F.2d 69, 75
(D.C. Cir. 1987); McCarthy, 741  F.2d at 1413. Even though an officer
in that circumstance is  engaged in governmental functions and is
acting within the  scope of his responsibilities, the right to invoke
absolute  immunity evaporates when the conduct is "manifestly exces-
sive," using means to accomplish one's responsibilities that  are
"beyond the outer perimeter of [one's] authority."  McKinney, 736 F.2d
at 770-71 (and cases cited therein).  While Griggs' complaint does not
expressly allege in haec  verba that Officer Haymans' conduct exceeded
the "outer  perimeters" of his official duties, Beebe, 129 F.3d at
1289, as  the district court noted, the factual allegations in the
com- plaint are to the same effect. Griggs has alleged that Officer 
Haymans not only failed properly to train his "vicious" dog,  but he
failed to control his dog, instead commanding the dog  to attack
Griggs after Griggs had complied with Officer 


Haymans' order to stand and place his hands on his head, and  failing
to command the dog to cease its attack. The use of a  police dog to
locate a suspected burglar is far different from  the use of a police
dog to attack a suspected burglar who has  submitted to police
authority.


Officer Haymans has two responses, neither of which is  availing.
First, he contends that reliance on Dellums and  Carter is misplaced
because those cases involved "the discre- tionary standard associated
with both the Federal Tort  Claims Act and District of Columbia law,
and not the broader  governmental/proprietary standard mandated by s
80." Offi- cer Haymans, however, misreads the court's recent decision 
in Beebe. Although the Federal Tort Claims Act was not at  issue, the
court in Beebe drew upon the precedent established  by the Act in
addressing s 80 of the WMATA Compact and  endorsed the
discretionary/ministerial dichotomy employed in  Dellums and Carter.
See Beebe, 129 F.3d at 1287 (citing  Burkhart, 112 F.3d at 1216). The
district court, therefore,  could properly invoke the distinction
long-recognized by the  court, see McKinney, 736 F.2d at 769-71,
between discretion- ary activity illustrated in Beebe, that cannot
result in tort  liability for WMATA, and ministerial arrest activity
illustrat- ed in Carter, that may result in tort liability for a Metro
 Transit Police officer. Moreover, unlike the situation con- fronting
the court in Beebe, where the Compact was silent as  to the immunity
of the WMATA employees being sued, the  district court was instructed
by Congress in s 76(b) of the  Compact to look to the law applicable
to D.C. Metropolitan  Police officers in determining whether Officer
Haymans was  cloaked with the same immunity as WMATA.


Second, contrary to Officer Haymans' contention at oral  argument,
United States v. Gaubert, 499 U.S. 315 (1991), does  not undermine the
propriety of drawing distinctions between  types of discretionary
conduct. In Gaubert, the Supreme  Court held that for purposes of the
Federal Tort Claims Act,  discretionary activity can include
operational activities and is  "not confined to the policy or planning
level." 499 U.S. at  325. Thus, a suit against federal bank officials
for negligently  advising and overseeing the operations of a thrift


was barred by immunity. See id. at 333. This result fol- lowed, the
Court said, because the bank officials were autho- rized by statute to
provide advice and oversight in a manner  that left room for the
exercise of political, social, or economic  choice. See id. at 324-26.
While the determination of the  nature of an activity under the
Compact is a question "of  federal law," Burkhart, 112 F.3d at 1216
(quoting Sanders v.  WMATA, 819 F.2d 1151, 1154 (D.C. Cir. 1987)),
under s 76(b)  of the Compact Officer Haymans was vested only with the
 powers and limitations of a D.C. Metropolitan Police officer  when he
responded to a call for assistance from the D.C.  Metropolitan Police
Department, and thus the discretion- ary/ministerial distinctions
noted in Biscoe, 738 F.2d at 1363,  continue to apply.


Accordingly, we affirm the district court's order denying  Officer
Haymans' motion to dismiss the complaint on absolute  immunity and
statute of limitations grounds.5




__________

n 5 Because the appeal involves only the issue of Officer Hay- mans'
entitlement to absolute immunity, we do not reach the issue  of any
claim that he may have to qualified immunity.