UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

Civil Action No. 1 9

- 1656 (TJK) KENNETH HARRIOTT et al. , Plaintiff s ,

v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY , Defendant.

MEMORANDUM OPINION AND ORDER Defendant Washington Metropolitan Area Transit Authority (WMATA) has moved to strike or dismiss Plaintiffs’ c lass a llegations and to dismiss Count II of the Amended Complaint. WMATA argues that Plaintiffs failed to move for class certification within the time limit imposed by this Court’s Local Rules. WMATA also argues that it is immune from Plaintiff s ’ age discrimination claims. For the reasons discussed below, the Court will grant Defendant’s motion. Accordingly, it will strike Plaintiffs’ class claims and dismiss Count II of the Amended Complaint for lack of subject

- matter jurisdiction

. I. Class Claims Local Rule of Civil Procedure 23.1(b) requires a plaintiff to move for certification under Fed. R. Civ. P. 23(c)(1) with in 90 days of filing the first complaint bringing a class

- wide claim. E.g. , Sakyi v. Estee Lauder Cos

. , 298 F. Supp. 3d 16, 17

– 18 (D.D.C. 2018) . “ Local Rule 23.1(b) and its predecessors have been strictly applied in this Circuit. ” Howard v. Gutierrez , 4 74
F. Supp. 2d 41, 53 (D.D.C. 2007) ; see also McCarthy v. Kleindienst , 741 F.2d 1406, 1411 (D.C. Cir. 1984) (explaining that the 90

- day deadline “ implements the policy behind the already extant requirement of Fed. R. Civ. P. 23(c)(1) that class certification decisions be made as soon as2 practicable ”) (citation and internal quotation marks omitted ). Here, Plaintiffs raised class

- wide claims in their first complaint, which they filed on June 6, 2019. See ECF No. 1 ¶ 12. Th erefore, they had to move for class certification by September 4, 2019. They failed to do so. They also failed to seek an extension from the Court or explain why, before responding to the instant motion, class certification should be saved for a later ti me. “ Serious consequences often flow from a fair application of time limits, and that is the case here. ” Howard , 474 F. Supp. 2d at 5 7
n.11. Because Plaintiffs offer no persuasive reasons to excuse their neglect, see, e.g. , id. at 55

– 57, the Court will grant Defendant’s motion and strike the class allegations from the Amended Complaint , see Artis v. Yellen , 309 F.R.D. 69, 73 (D.D.C. 2015).
II. Count II : Age Discrimination Claim Under D.C. Circuit precedent, the Eleventh Amendment renders WMATA immune from suit under the Age Discrimination in Employment Act of 1967 (ADEA)

. Jones v. Washington Metro. Area Transit Auth. , 205 F.3d 428, 431

– 3 2 (D.C. Cir. 2000) . Plaintiffs make sever al attempts to circumvent this holding. First, they argue that the Supreme Court’s decision in
Mount Lemmon Fire Dist rict v. Guido , 139 S. Ct. 22 (2018) , abrogated Jones . ECF No. 7 at 12

– 13. The Court disagrees. Guido ’s holding was narrow; it focused e xclusively on the ADEA definition of “employer.” See Guido , 139 S. Ct. at 25

– 26. It never so much as cited Kimel v. Fla. Bd. of Regents , 528 U.S. 62, 91 (holding that the ADEA did not validly abrogate states ’ Eleventh Amendment immunity) , the decision on whic h the Jones court relied. Moreover, the passage in Guido to which Plaintiffs point cites the Supreme Court’s earlier decision in EEOC v. Wyoming , 460 U.S. 226 (1983). And Wyoming addressed the ADEA in the context of the Tenth Amendment and Congress’ s power to regulate interstate commerce. It never so much as mentioned a state’s sovereign immunity under the Eleventh Amendment

. B y contrast , Kimel

—3 which briefly discusses Wyoming in passing

— explicitly invalidated “[t]he ADEA’s purported abrogation of the States’ sovereign immunity,” Kimel , 528 U.S. at 91. And finally, even if the Court agreed with Plaintiff s ’ reading of Guido (which it does not), it c ould not so easily sidestep
t his Circuit’s controlling precedent. “[D] istrict judges, like panels of [the D.C. Circuit], are obligated to follow controlling circuit precedent until either [the Circuit], sitting en banc, or the Supreme Court, overrule it .” United States v. Torres , 11 5 F.3d 1033, 1036 (D.C. Cir. 1997)

. And an intervening Supreme Court decision “effectively overrules” controlling precedent only if it “eviscerates” the prior precedent such that the two cases are “incompatible.” Perry v. Merit Sys. Prot. Bd. , 829 F.3d 7 60, 764 (D.C. Cir. 2016) (citation omitted ) , vacated on other grounds sub nom. Perry v. Ross , 697 F. App’x 18 (D.C. Cir. 2017)

. Whatever may be said of Guido , it does not “eviscerate” Jones

. Next, Plaintiffs argue that WMATA waived its Eleventh Amendmen t immunity when it agreed to comply with the ADEA in a funding agreement with the Federal Transit Administration (FTA) . ECF No. 7 at 13

– 14. Of course, Congress can condition receipt of federal funds on a state’s waiver of immunity if Congress “manifests ‘a clear intent’” to do so. Barbour v. Washington Metro. Area Transit Auth. , 374 F.3d 1161, 1163 (D.C. Cir. 2004) (citation omitted)

. However, Plaintiffs do not suggest that Congress imposed the relevant condition here . Rather, th ey argue that the FTA , an administrative agency, did

. But they cite no authority for the notion that Congress can delegate its power to condition funds on a state’s waiver of immunity to an administrative agency

. 1 In other words, they have “ not shown tha t

1 Instead, Plaintiffs rely on the unremarkable proposition that “Congress may delegate rule

making decisions attendant to the use of federal funds to executive Cabinet heads.” ECF No. 7 at 14.4 Congress, by a silent, implicit delegation of authority, can open the door for expansions of federal power that it otherwise could not have accomplished without satisfying a stringent clear

statement rule. ” See Slack v. Washington Metro. Area Transit Au th. , 325 F. Supp. 3d 146, 154 (D.D.C. 2018) . Nor have they explained why merely agreeing to comply with the ADEA necessarily involves consenting to suits brought by private third parties. See i d. at 154

– 55. For these reasons, the Court declines to find that WMATA waived its sovereign immunity through the terms of its agreement with the FTA. Finally, Plaintiffs argue that WMATA waived immunity by including age discrimination protections in its own policies. ECF No. 7 at 14

– 1 6

. 2 In the policy Plaintiffs reference, WMATA commits “to complying with all applicable federal laws that prohibit workplace discrimination and retaliation,” on the basis of a variety of characteristics, including age. Id. at 14

– 15 (cit ation and internal quotation marks omitted ). 3 The policy also states that it “is not intended to prohibit Employees .

. . from filing complaints with the U.S. Equal Employment Opportunity Commission.” Id. at 15 (citation and internal quotation marks omit ted ). “Plaintiff [s ’ ] argument, however, fails to grasp the distinction between WMATA’s obligation to

2 To the extent Plaintiffs argue that WMATA’s policy is furth er evidence that it waived immunity by accepting funds from the FTA, the Court reiterates that Plaintiffs have cited no persuasive authority that waiver may be e ffect uated in that manner.

3 When considering a motion to dismiss for lack of subject

- matter j urisdiction, “the court may consider the complaint supplemented by undisputed facts evidenced in the record, or the complaint supplemented by undisputed facts plus the court’s resolution of disputed facts.” Herbert v. Nat ’ l Acad. of Scis. , 974 F.2d 192, 1 97 (D.C. Cir. 1992); see also All. For Democracy v. Fed. Election Comm’n , 362 F. Supp. 2d 138, 142 (D.D.C. 2005) (noting that “in deciding a Rule 12(b)(1) motion, it is well established in this Circuit that a court is not limited to the allegations in the complaint, but may also consider material outside of the pleadings in it s effort to determine whether the court has jurisdiction in the case”).5 comply with federal laws .

. . and its immunity from private suit in the absence of a sufficient waiver or abrogation of that immunity.” Buck v. Washington Metro. Area Transit Auth. , No. CV
17

- 632 (RDM), 2019 WL 6617853, at *10 (D.D.C. Dec. 5, 2019). WMATA’s statement in a policy that it will comply with federal laws that apply to it does not constitutes the “clear declaration” necessary to waive immunity. See Sossamon v. Texas , 563 U.S. 277, 284 (2011) (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd. , 527 U.S. 666, 682 (1999) ). 4
Because WMATA is immune from Plaintiffs’ ADEA claims, the Court lacks subject

matter jurisdiction over Count II of the Amended Complaint and must dismiss it

. See Burkhart v. Washington Metro. Area Transit Auth. , 112 F.3d 1207, 1216 (D.C. Cir. 1997) (noting that sovereign immunity is jurisdictional)

. III. Conclusion and Order


### For all the abov e reasons , it is hereby ORDERED that Defendant’s Motion to Dismiss
Count II and Strike Plaintiff s ’ Class Allegations, ECF No. 6, is GRANTED . It is FURTHER

4 Plaintiffs also point to Slack v. Wash. Metro. Area Transit Auth. , 353 F. Supp. 3d 1 (D.D.C. 2019) , in which another court in this District found that WMATA had waived immunity by virtue of adopting a particular policy. That case is distinguishable. There, WMATA’s policy affirmatively notified employees that they could, pursuant to the specific statute the plaintiffs were suing under, “file a complaint of discrimination with the Inspector General of the appropriate federal agency.” Id. at 9. Here, the policy never mentions the ADEA. But i n any event, this Court doubts that something as significant as a waiver of immunity can be effectuated through a policy statement that does n ot explicitly consent to private suit. See Buck , 2019 WL 6617853, at *10 n.2 (observing that a WMATA policy agreeing to comply with the National Transit Systems Security Act would not alone waive immunity). Doing so would run contrary to the Supreme Cour t’s direction that that courts are to “indulge every reasonable presumption against waiver.” Coll. Sav. Bank , 527 U.S. at 682 (citation and internal quotation marks omitted ); see also Sossamon , 563 U.S. at 284 (“Waiver may not be implied.”)

.6 ORDERED that Plaintiff s ’ class allegations are STRICKEN ; and Count II of Plaintiff s ’
Ame nded Complaint, ECF No. 5, is DISMISSED without prejudice

.

SO ORDERED. /s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge Date: December 23 , 2019