Abdulwali, Sherreal v. WMATA, No. 01-7165 (D.C. Cir. 2003)

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 7, 2002 Decided January 14, 2003

No. 01-7165

Sherreal Abdulwali,

Appellee

v.

Washington Metropolitan Area Transit Authority,

Appellant

Appeal from the United States District Court

for the District of Columbia

(99cv01905)

Bruce P. Heppen, Associate General Counsel, Washington

Metropolitan Area Transit Authority, argued the cause for

appellant. With him on the briefs were Cheryl C. Burke,

General Counsel, Robert J. Kniaz, Deputy General Counsel,

and Gerard J. Stief, Frederic H. Schuster, and Mark F.

Sullivan, Associates General Counsel.

 Stephan H. Peskin argued the cause and filed the brief for

appellee.

Before: Randolph and Rogers, Circuit Judges, and

Williams, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: The issues are whether this

appeal is timely and, if so, whether sovereign immunity

shields the Washington Metro Area Transit Authority from

liability for the design of warning signs on Metro trains.

On February 5, 1999, six-year-old Tyri Brooks Hammond

and his mother, Sherreal Abdulwali, were on the platform in

the U Street-Cardozo Metrorail station, preparing to board a

Metro train. Tyri boarded, but the doors closed before his

mother could get on, and the train pulled away from the

station. Alone, Tyri became upset and called to his mother,

who was running alongside the train, yelling for help. When

the train did not stop, Abdulwali immediately reported the

situation to the station manager.

As the train left the station and proceeded into a tunnel,

Tyri moved to the rear of the car and exited through the

bulkhead doors, attempting to pass into the next car. The

train passed over a switching device causing a large gap

between the two cars. Tyri fell through this gap and onto the

tracks.

When Abdulwali and the station manager heard cries com-

ing from the tunnel, they notified Transit Authority officials,

who hurried to Tyri. They found him severely injured, but

still conscious, seventy feet into the tunnel. Four days later,

despite efforts to save him at Children's Hospital, Tyri died

from his injuries.

Abdulwali sued the Transit Authority, alleging that its

negligence in various respects caused the death of her son.

Among her claims was an allegation that the Transit Authori-

ty failed to warn passengers adequately of the dangers of

traveling between cars on a moving train.

 The only warning in a Metro car was a sign on each

bulkhead door that read "No Passage--Except in Emergen-

cy." The size, location, and language of these signs were

prescribed in the Transit Authority's contract for the pur-

chase of Metro trains. WMATA Rapid Rail Transit Car

Contract 2Z0065, Conformed Technical Specification dated

June 15, 1979 at s S5.01 INTERIOR SIGNS, (c) Miscellane-

ous Signs.

The Transit Authority, invoking the defense of sovereign

immunity, moved to dismiss, or in the alternative for sum-

mary judgment. The district court granted the Transit Au-

thority's summary judgment motion on all counts except with

respect to the failure to warn claim. Abdulwali v. WMATA,

Civ. No. 99-01905, slip op. at 12, 13 (D.D.C. Nov. 28, 2000).

On that count, the court rejected the immunity defense,

explaining that although the Transit Authority had provided

specifications for the bulkhead signs in its contract for the

purchase of Metro cars, those specifications did not prohibit

the Transit Authority from furnishing cars with additional

signs or otherwise providing increased warning of the danger

of passing between cars on a moving train. Id. at 12. The

court issued a "Memorandum Opinion and Order" but did not

set forth the judgment on a separate document. On Decem-

ber 15, 2000, the Transit Authority filed a "Motion for Recon-

sideration and Clarification of the November 28, 2000 Order,"

which the district court denied in a single-page order dated

September 6, 2001. The Transit Authority now appeals both

the November 28 order denying its defense of immunity and

the September 6 order denying reconsideration.

The first issue is whether the Transit Authority's appeal of

the November 28 order is timely. A notice of appeal must be

"filed ... within 30 days after the judgment ... appealed

from is entered." Fed. R. App. P. 4(a)(1)(A). A judgment is

considered "entered for purposes of [Fed. R. App. P.] 4(a)

when it is entered in compliance with Rule[ ] 58 ... of the

Federal Rules of Civil Procedure." Fed. R. App. P. 4(a)(7)

(1999).1 We have held that "the clock on a party's right to

__________

1 On December 1, 2002, Fed. R. App. P. 4(a)(7) was amended to

provide that a judgment is considered entered for appellate pur-

appeal" does not start to run until the district court "enter[s]

a judgment that complies with Rule 58." United States v.

Feuver, 236 F.3d 725, 727 (D.C. Cir. 2001).

Rule 58 requires that "every judgment ... be set forth on

a separate document." Fed R. Civ. P. 58. A "judgment" is "a

decree and any order from which an appeal lies," Fed R. Civ.

P. 54(a), and encompasses interlocutory orders from which an

appeal lies. See McCowan v. Sears, Roebuck & Co., 908 F.2d 1099, 1103 (2d Cir. 1990); see also 10 Charles Alan Wright,

Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure: Civil 3d s 2651, at 8 (1998). Since a court's

denial of an immunity defense is immediately appealable, see

KiSKA Constr. Corp. v. WMATA, 167 F.3d 608, 610-11 (D.C.

Cir. 1999), the district court's November 28 order constituted

a "judgment," and the court was required to set forth that

judgment on a separate document for entry by the clerk of

the court. See Derrington-Bey v. District of Columbia Dep't

of Corr., 39 F.3d 1224, 1225 (D.C. Cir. 1994). The court's

failure to do so means that the Transit Authority's allotted

time for filing an appeal never began to run, much less expire.

The Transit Authority's appeal is therefore timely. See Unit-

ed States v. Haynes, 158 F.3d 1327, 1330-31 (D.C. Cir. 1998).

This leaves the question of immunity. The Transit Author-

ity was created when Congress approved the Washington

Metropolitan Area Transit Authority Compact signed by Ma-

ryland, Virginia, and the District of Columbia. See Pub. L.

No. 89-774, 80 Stat. 1324 (1966) (codified as amended at D.C.

Code Ann. s 9-1107.01 et seq.). The Compact confers upon

the Transit Authority the sovereign immunity enjoyed by the

signatories. See Beebe v. WMATA, 129 F.3d 1283, 1287 (D.C.

Cir. 1997). That immunity has been waived for "torts ...

committed in the conduct of any proprietary function," but

preserved for "torts occurring in the performance of a gov-

ernmental function." D.C. Code Ann. s 9-1107.01(80).

__________

poses after either the judgment has been set forth on a separate

document or 150 days have run from entry of the judgment in the

civil docket.

 We have applied a two-part test to determine whether a

particular activity is governmental or proprietary. See Burk-

hart v. WMATA, 112 F.3d 1207, 1216 (D.C. Cir. 1997). We

first ask whether the activity at issue is "quintessentially

governmental," such as the "operation of a police force."

Dant v. District of Columbia, 829 F.2d 69, 74 (D.C. Cir. 1987).

If so, the activity falls within the scope of the Transit

Authority's immunity. When the activity is not quintessen-

tially governmental, the relevant inquiry is whether the Tran-

sit Authority's actions were "discretionary." Discretionary

activities are "governmental," and thus are protected by

sovereign immunity. See Burkhart, 112 F.3d at 1216. Since

both parties agree, as do we, that the Transit Authority's

decisions concerning the design and placement of warning

signs in Metro cars are not a quintessentially governmental

function, our analysis focuses on whether the Transit Authori-

ty's decisions constituted discretionary functions.

Discretionary functions are those governmental actions and

decisions, "based on considerations of public policy" and

requiring "an element of judgment or choice." Berkovitz by

Berkovitz v. United States, 486 U.S. 531, 536-37 (1988). If

any " 'statute, regulation, or policy specifically prescribes a

course of action' " for the Transit Authority to follow, then no

discretion is involved, since the Transit Authority has "no

rightful option but to adhere to the directive." United States

v. Gaubert, 499 U.S. 315, 322-23 (1991). In the absence of a

prescribed course of action, the Transit Authority's decisions

are discretionary if they involve "political, social, [or] econom-

ic" choices. Burkhart, 112 F.3d at 1217.

Here, the Compact does not prescribe any design specifica-

tions for Metro cars, leaving the Transit Authority with broad

discretion to design all transit facilities and to enter into

contracts for their operation and furnishment. D.C. Code

Ann. ss 9-1107.01(12)(f), 13(a). As a result, the Transit

Authority was required to make choices, and we must scruti-

nize these choices to determine if they were discretionary.

Application of the discretionary function test in other con-

texts has generated a morass of conflicting cases. See, e.g.,

Shansky v. United States, 164 F.3d 688, 693 (1st Cir. 1999)

(collecting cases). But one constant in our precedents is that

the Transit Authority makes discretionary choices when "es-

tablishing 'plans, specifications or schedules' " regarding the

Metro system. Beatty v. WMATA, 860 F.2d 1117, 1127 (D.C.

Cir. 1988).2 We have drawn a distinction between complaints

alleging negligent design, which the Transit Authority's im-

munity bars, and those alleging negligent maintenance, to

which the Transit Authority's immunity does not apply.

Dant, 829 F.2d at 74.

Here, plaintiff has not alleged that the Transit Authority

negligently maintained the signs; she has challenged only the

adequacy of the signs' warning. The complaint is aimed at

the design of the signs as specified in the Transit Car

Contract. Sovereign immunity therefore bars her claim.

Holding otherwise would foster "judicial 'second-guessing' " of

"political, social, and economic" decisions that the Transit

Authority's immunity was designed to prevent. Sanders v.

WMATA, 819 F.2d 1151, 1155, 1156 (D.C. Cir. 1987) (quoting

United States v. Varig Airlines, 467 U.S. 797, 814 (1984)).

The decision in Cope v. Scott, 45 F.3d 445 (D.C. Cir. 1995),

does not alter our conclusion. Cope held that the National

Park Service's decision not to post warning signs at a danger-

ous curve on a slippery road was not discretionary, and

therefore sovereign immunity did not bar a suit against the

Park Service for negligence. The Park Service's decisions

whether to post signs were governed by engineering stan-

dards rather than its policy judgment; its decisions thus were

not discretionary functions. See Sloan v. Dep't of Hous. &

Urban Dev., 236 F.3d 756, 764 n.6 (D.C. Cir. 2001). This case

is different. Designing the bulkhead signs, or any feature of

the Metro system, required judgments that were by their

nature susceptible to a policy analysis. See Dant, 829 F.2d at

74. The Transit Authority doubtless considered matters such

as safety, aesthetics, cost, and a desire to alert passengers to

the danger of moving between cars without discouraging

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2 See also Burkhart, 112 F.3d at 1216-17; Souders v. WMATA,

48 F.3d 546, 549 (D.C. Cir. 1995); Dant, 829 F.2d at 74.

them from so moving during emergencies. Judicial review

"in such decisionmaking through private tort suits would

require the courts to 'second guess' " the Transit Authority's

policy judgments. See Varig Airlines, 467 U.S. at 820.

Accordingly, the sign specifications fall within the scope of a

discretionary function, and sovereign immunity barred the

failure to warn claim. See Burkhart, 112 F.3d at 1217.

The district court's denial of the Transit Authority's immu-

nity defense is reversed. The appeal of the motion to recon-

sider is moot.

So ordered.