Petition for Writ of Certiorari — Owens-Corning Fiberglas Corp. v. District of Columbia
Supreme Court brief1990
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Supreme Court, U9,
IN THE
Supreme Court of the United
OCTOBER TERM, 1989
o
OWENS-CORNING FIBERGLAS CORPORATION, GAF CORPORATION, THE
CELOTEX CORPORATION, CAREY CANADA, INC., EAGLE-PICHER
INDUSTRIES, INC., ARMSTRONG WORLD INDUSTRIES, INC., KEENE
CORPORATION, FIBREBOARD CORPORATION, OWENS-ILLINOIS, INC.,
UNITED STATES GYPSUM COMPANY, W.R. GRACE & COMPANY,
NATIONAL GYPSUM COMPANY, U.S. MINERAL PRODUCTS CO.,
PFIZER INC., GEORGIA PACIFIC CORPORATION, H.K. PORTER
COMPANY, INC., SOUTHERN TEXTILE CORPORATION, THE FLINTKOTE
COMPANY, PITTSBURGH CORNING CORPORATION, TURNER &
NEWALL, PLC, ASBESTOS CORPORATION, LTD., and PROKO
INDUSTRIES, INC., =
Petitioners,
-—V.-—
THE DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,
Respondent.
PETITION FOR A WRIT OF CERTIORARI TO THE
DISTRICT OF COLUMBIA COURT OF APPEALS
PAUL A. ZEVNIK*
KAYE, SCHOLER, FIERMAN,
HAYS & HANDLER
901 15th Street, N.W.
Washington, D.C. 20005
(202) 682-3500
Attorneys for Petitioners
* Counsel of Record
June 6, 1990
II.
Ill.
IV.
i
QUESTIONS PRESENTED
. Whether the District of Columbia Court of Appeals
exceeded its authority in implicitly overruling century-old
precedent of this Court which holds that the District of
Columbia is subject to statutes of limitations.
Whether Congress’s exclusive legislative authority over
the District of Columbia prevents the sovereign immu-
nity doctrine of nullum tempus from operating in favor
of the District, regardless of the manner in which the
City’s actions are characterized.
Whether the District of Columbia’s lawsuit for alleged
damage to its real property interests may be held to con-
stitute a ‘‘public’’ function entitling the District to a
form of governmental immunity where no evidentiary or
other scrutiny was permitted into the nature of the Dis-
trict’s activities, and where the court below sua sponte
engaged in an extra-record foray into disputed issues of
material fact.
Whether rights of repose granted by Congress pursuant
to its exclusive legislative authority over the District of
Columbia, once vested, may be removed without due
process.
ii
LIST OF INTERESTED PARTIES
The following parties participated in the proceeding before
the District of Columbia Court of Appeals:
The District of Columbia
GAF Corporation
United States Gypsum Corporation
Owens-Corning Fiberglas Corporation
Celotex Corporation
Carey Canada, Inc.
Eagle-Picher Industries
Armstrong World Industries
Keene Corporation
Fibreboard Corporation
Southern Textile Corporation
H.K. Porter Company
Owens-Illinois, Inc.
CertainTeed Corporation
W.R. Grace & Company
National Gypsum Company
U.S. Mineral Products Company
Pfizer Inc.
Georgia Pacific Corporation
Proko Industries, Inc.
The Flintkote Company
Raymark Industries, Inc.
Pittsburgh Corning Corporation
Turner and Newall, PLC
J.W. Roberts, Ltd.
Turner Asbestos Fibres, Ltd.
Asbestos Corporation, Ltd.
The following companies are subsidiaries of Owens-
Corning Fiberglas Corporation:
American Borate Corporation
Ambarco, Inc.
Barbcorp, Inc.
Eric Company
Fiberglas Canada Inc.
V.I.L. Vermiculite Inc. (Canada) is a subsidiary of
this company.
Karlcorp
Matcorp, Inc.
N.V. Owens-Corning S.A.
Deutsche Owens-Corning Glasswool GmbH (Ger-
many), Owens-Corning Fiberglas Deutschland GmbH
(Germany), and Owens-Corning Isolation France S.A.
(France) are subsidiaries of this company.
OCFIBRAS Limitada
Fiberglas Fibras Limitada (Brazil) and Fiberglas Com-
mercial Exportadora e Importadora Ltda. (Brazil) are
subsidiaries of this company.
O/C/FIRST CORPORATION
OCFOGO, Inc.
OCFSC, Inc.
O/C/SECOND CORPORATION
O/C Tanks Corporation
Owens-Corning Cayman Limited
European Owens-Corning Fiberglas (Belgium) and
Norsk Glassfiber A/S (Norway) are subsidiaries of
this company, which also has a partnership interest
in Arabian Fiberglass Insulation Company (Saudi
Arabia).
Owens-Corning Fiberglas Espara, S.A.
Owens-Corning Fiberglas France, S.A.
Owens-Corning Fiberglas (Italy) S.A.
Owens-Corning Fiberglas Netherlands B.V.
Owens-Corning Fiberglas (U.K.), Ltd.
Owens-Corning Fiberglas (G.B.) Ltd. (U.K.), Regina
Fibreglass Ltd. (U.K.), Wrexham A.R. Glass Ltd.
(U.K.), and Scanglas, Ltd. (U.K.), are subsidiaries of
this company.
Owens-Corning Real Estate Corporation
Palmetto Products, Inc.
Roscorp, Inc.
iv
Scandinavian Glasfiber AB
Dansk-Svensk Glasfiber A/S (Denmark) is a sub-
sidiary of this company.
Veroc Technology A/S
Willcorp, Inc.
GAF Corporation has no parent and no subsidiaries (other
than wholly-owned subsidiaries) aside from GAF-Huls Chemi
GmbH, a 50% joint venture with Huls A.G.
The following are the parent and subsidiaries of the Celo-
tex Corporation:
Jim Walters Corporation
Carey Canada, Inc.
Eagle-Picher Industries, Inc. has no subsidiaries or affili-
ates.
The following are affiliates and subsidiaries of Armstrong
World Industries:
American Olean Tile Co., Inc.
Applied Color Systems, Inc.
Armstrong Cork Finance Corporation
Armstrong Ventures, Inc.
Armstrong World Industries Charitable Foundation
Armstrong World Industries (Delaware) Inc.
Charleswater Products, Inc.
Chemline Industries, Inc.
Design Ideas, Inc.
Forms + Surfaces, Inc.
Bega/FS, Inc.
Thomasville Furniture Industries, Inc.
Fayette Enterprises, Inc.
Gilliam Furniture, Inc.
Gordon’s Inc.
Westchester Ledather, Inc.
Keene Corporation is a wholly owned subsidiary of
Bairnco Inc.
Vv
The following are subsidiaries and affiliates of Fibreboard
Corporation:
Snider Lumber Products
Trimont Land Company
Owens-Illinois, Inc. is controlled by three limited partner-
ships of which an affiliate of Kohlberg, Kravis, Roberts &
Co., L.P., is the general partner and certain investors associ-
ated with KKR. All subsidiaries are wholly owned, with the
exception of a 50/50 joint venture with Nippon Electric Glass
Co., Ltd., which operates under the name OI-NEG TV Prod-
ucts, Inc.
W.R. Grace & Company, which is now known as W.R.
Grace & Company-Conn., is a wholly owned subsidiary of
W.R. Grace & Company. The following are non-wholly
owned subsidiaries of W.R. Grace & Company:
Del Taco Corporation
Del Taco Restaurants, Inc.
Grace Energy Corporation
Grace Drilling Company
Grace Environmental, Inc.
Aancor Holdings, Inc., is an affiliate of National Gypsum
Corporation.
USG Corporation is the parent company of United States
Gypsum Company. The following corporations are non-
wholly owned affiliates of petitioner United States Gypsum
Company:
American Metals Corporation
BHI International, Inc.
C-S-W Drywall Supply Company
C.N.G. Distribution Limited
CGC Inc.
CIKSA, S.A. de C.V.
Construcciones, Recubrimientos
Y Acabados S.A. de C.V.
DAP Canada
vi
DAP Inc.
Darswan, Inc.
Donn Australia
Donn Canada Ltd.
Donn Far East SDN BHD
Donn France S.A.
Donn International, Inc.
Donn International Sales Corp.
Donn Pacific Ltd.
Donn Products (U.K.) Ltd.
Donn Products GmbH
Donn South Africa (Pty) Limited
Gypsum Communications Co.
Gypsum Energy Management Co.
Gypsum Transportation Ltd.
L & W Supply Corporation
Little Narrows Gypsum Co.
Marstrat, Inc.
North Baldwin Park Corp.
(formerly Hollytex)
101 South Wacker Co.
Panama Gypsum Company, Inc.
Panama Wallboard, Inc.
Sequoyah Carpet Corp.
Stocking Specialists, Inc.
USG Enterprises, Inc.
USG Foreign Investments, Ltd.
USG Foreign Sales Corp.
USG Industries, Inc.
USG Interiors, Inc.
USG Intemational, Ltd. (DI-S)
USG Properties, Inc.
United States Gypsum Export Company
Westbank Planting Company
Westlake Land (Canada) Ltd.
Windsor Shipping Limited
Yeso Mexicano S.A.
Yeso Panamericano, S.A. de C.V.
Yesomet, S.A. de C.V.
Vii
The following are subsidiaries and affiliates of U.S. Min-
eral Products Co.:
Cafco Products Limited (Canada)
Columbia Acoustics and Fireproofing Company
Cafco International, Ltd.
Isolatek Corporation
The following are non-wholly owned subsidiaries of Pfizer
Inc.:
Laboratories Pfizer S.A.
Pfizer Laboratories (Bangladesh) Ltd.
Pfizer Egypt S.A.E.
Pfizer Limited (Ghana)
Agricare Limited
Pfizer Limited (India)
PT Pfizer Indonesia
Livestock Feeds Limited
Pfizer Products Limited
Pfizer Laboratories Limited
Pfizer Korea Limited
Pfizer Bioquimicos, S.A.
Pfizer Limited (Sri Lanka)
Pfizer C. & G. Inc.
Laboratorie Beral, S.A.
Quigley Italiana S.p.A.
SudFarma S.r.L.
Pfizer, S.A.
Pfizer Pharmaceuticals Ltd.
Pfizer Quigley Korea Ltd.
Dideco N.V.
Sofracob S.A.
The following are subsidiaries and affiliates of Georgia-
Pacific Corporation:
Amador Central Railroad
Amazonias Compensados E. Laminados, Limitada
Ashley, Drew and Northern Railway Company
Vili
Aztec Trading Company, S.A. Incorporated
Beaver Wood Fibre Company, Limited
Brunswick Chemical Company
Brunswick Export Sales, Inc. ;
Brunswick Pulp and Paper Company
Brunswick Pulp Land Company, Inc.
Fordyce and Princeton R.R. Co.
G-P DISC, Inc.
G-P Inveresk Corporation
Georgia Steamship Company, Inc.
Georgia Temp, Inc.
Georgia-Pacific Building Materials Sales, Ltd.
Georgia-Pacific Finance N.V.
Georgia-Pacific Foreign Sales Corporation
Georgia-Pacific GmbH
Southern Textile Company is a wholly-owned subsidiary of
H.K. Porter Company, Inc. The companies have no other
subsidiaries or affiliates.
Inasco Limited is the ultimate owner of the Flintkote Com-
pany. Inasco Limited and its majority owned subsidiary Can-
ada Trust Company are the only companies affiliated with
the Flintkote Company as to which any debt or equity inter-
est is held by anyone other than an affiliated company.
Each of Pittsburgh Plate Glass Industries, Inc., and Corn-
ing Glass Works holds 50% of the stock of Pittsburgh Corn-
ing Corporation.
T&N ple (formerly known and sued herein as Turner &
Newall PLC) is an English company that has no parent and
no United States subsidiary companies (other than wholly
owned subsidiaries) except Chemopolymer Corporation.
T&N’s numerous subsidiaries (other than wholly-owned sub-
sidiaries) outside the United States are as follows:
Asbestos Magnesia & Friction Materials Limited
Honel Holdings AG
Heinz Honnegger AG
Garnetco S.A.
T&N Holdings Limited
Ecsos Development Company Limited
Asbestos Corporation Limited has no parent or non-wholly
owned subsidiary corporations.
Proko Industries, Inc. is a wholly owned subsidiary of
RPM, Inc.
TABLE OF CONTENTS
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ee es
CONSTITUTIONAL AND STATUTORY PROVI-
ITER RE Dare tne
REASONS FOR GRANTING THE PETITION......
8
Il.
Ill.
IV.
The Lower Court’s Decision Is In Direct Con-
flict with Metropolitan Railroad Co. v. District
of Columbia, 132 U.S. 1 (1889).............
The Lower Court’s Disregard of Metropolitan
Railroad Derives From A Misperception of
That Case’s Constitutional Underpinnings and
of the Legal Status of the District of Colum-
bia, a Municipal Corporation...............
The Mere Declaration By The Government of
a ‘‘Public’’ Purpose Cannot Be Sufficient To
Preclude Evidentiary Consideration of Mate-
rial Facts In Dispute or Judicial Scrutiny of
the Activities Allegedly Constituting the ‘‘Pub-
Se PEE Sc bbb 6hc ne uedesuewbasessselees
Rights Vested By the Congressionally-Enacted
District of Columbia Statute of Repose May
Not Be Removed Absent Due Process .......
PAGE
13
17
xi
PAGE
CRORE Wi v'o'nk Sua eu ciwacbenccnedouvasansen 23
APPENDIX
Opinion of the Court of Appeals ........... la
Order Denying Rehearing..................- 33a
Opinions of the Superior Court............. 35a
Constitutional and Statutory Provisions
REE 5 ps cacudeescutvenevecsaeeeraenweus 56a
xii
TABLE OF AUTHORITIES
CASES PAGE
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) 17
Block v. North Dakota ex rel. Bd. of Univ. & School
2 rr 22
Boise City Artesian Hot & Cold Water Co. v. Boise
Cy Bae We eee ee Ges FR oc cesccrvevvvccses 16
Bradley v. School Bd., 416 U.S. 696 (1974) ......... 5
Byrd v. Blue Ridge Rural Elec. Coop., 356 U.S. 525
DE ccaceckauunsnecehe endowed ioedeeesddoheoene 18
Capital Traction Co. v. Hof, 174 U.S. 1 (1899)...... 18
Carithers v. District of Columbia, 326 A.2d 798 (D.C.
ER Cahn RE SU ae ELE Ee bbe sens oo 18
Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ....... 17
Commonwealth v. Owens-Corning Fiberglas Corp., 238
Fe ee ee ee I CEs on cevenesceuvaecees 20
Community Communications Corp. v. City of Boulder,
ge re ee er ee ee 14, 16
District of Columbia v. Metropolitan R.R., 8 App.
iy Sct kNNd Cod anaeere ne a kn an hen obs 15
District of Columbia v. Washington & G. R.R., |
2 ec ccccubeeenaeivabeaneracie ee 1]
Dodson v. Washington Automated Co., 461 A.2d 1020
(Set TRUSS ED Bi oo ae a A 10
E.R.B. v. J.H.F., 496 A.2d 607 (D.C. 1985) ........ 18
Estep v. Construction Gen., Inc., 546 A.2d 376 (D.C.
Xiii
First United Methodist Church v. United States Gyp-
sum Co., 882 F.2d 862 (4th Cir. 1989), cert. denied,
oy wee! eee
Fisher v. United States, 328 U.S. 463 (1946).........
Goad v. Celotex Corp., 831 F.2d 508 (4th Cir. 1987),
cert. denied, 487 U.S. 1218 (1988)................
Goldberg v. Kelly, 397 U.S. 254 (1970)..............
Gonzales v. United States, 348 U.S. 407 (1955)......
Grannis v. Ordean, 234 U.S. 385 (1914).............
Guaranty Trust Co. v. United States, 304 U.S. 126
ttc Sie eee ned eeeh en kee ee veres do0ses
Hunt v. Bradshaw, 251 F.2d 103 (4th Cir. 1958).....
J.H. Westerman Co. v. Fireman’s Fund Ins. Co., 499
ee a tetas es 6 ee 6s ee
Joint Anti-Fascist Refugee Comm. v. McGrath, 341
Te cb e as ghee Woke ek¥6e0 6006 2.0
Loughborough v. Blake, 18 U.S. 317 (1820).........
Maryland & Dist. of Columbia Rifle & Pistol Ass’n v.
Washington, 294 F. Supp. 1166 (D.D.C. 1969),
Cg ES ltl A. |
McNabb v. United States, 318 U.S. 332 (1943).......
Meiggs v. Associated Builders, Inc., 545 A.2d 631
(D.C. 1988), cert. denied, it oe bk ee
A re
Metropolitan R.R. v. District of Columbia, 132 U.S. 1
Te eek ce pa ¥ekbéss sewees es passim
PAGE
20
12
21
18
18
18
1]
18
22
18
14
16
19
XiV
PAGE
Morgan v. United States, 304 U.S. 1 (1938) ......... 18
Neild v. District of Columbia, 110 F.2d 246 (D.C.
Staab ere dews OC aRkb eu pee aN eee bad aeenes 16
New York City Transit Auth. v. Beazer, 440 U.S. 568
DRG che aehs biases WARE CEA OS VER bi dd aedeeeaReen 19
“Northwest Airlines v. Transport Workers Union of
Se OF 6b 66a oso 0n sa wnececssaee 15
Palmore v. United States, 411 U.S. 389 (1973)....... 15
Penhallow v. Doane’s Adm’r, 3 U.S. 54, 93-94 (1795) 13
Pernell v. Southall Realty, 416 U.S. 363 (1974)...... 12, 18
President of Georgetown College v. Madden, 505
Supp. 557 (D. Md. 1980), aff’d in part, dismissed in
part, GOO F.20 Di CG Cie. TOG ]) . oc ccvcesccscnns 19
Pritchard v. Norton, 106 U.S. 124 (1882) ........... 21
Proprietors of Charles River Bridge v. Proprietors of
Warren Bridge, 36 U.S. 420 (1837) ............... 16
Rodriguez v. Compass Shipping Co., 451 U.S. 596
Dt tcchrnxneadvbiedds sh caleees keane ehdedetaes 10
Roller v. Basic Constr. Co., 238 Va. 321, 384 S.E.2d
RS ae cA re A engeperee ne eerie Fe 20
Rosenberg v. Town of North Bergen, 61 N.J. 190, 293
ie ee ick beatae aca hbeeechkickkskuene one 20
S.R.A., inc. v. Minnesota, 327 U.S. 558, 562 (1946) . 13
Sandoe v. Lefta Assocs., 599 A.2d 732 (D.C. 1988).. 19
School Bd. v. United States Gypsum Co., 234 Va. 32,
ee ee Ee TE vice ve cadc dacs toevuretcadees 11, 20
Slocum v. New York Life Ins. Co., 228 U.S. 364
RIERA Sa rege eer ro rere rey ome we raee ea ae a 18
|
XV
PAGE
mente ¥. Beary, SB U.S. GST oc ccc siviscwcccssves 12
United States v. Darby, 312 U.S. 100 (1941)......... 14
United States v. Kagama, 118 U.S. 375 (1886)....... 14
United States v. Kubrick, 444 U.S. 111 (1979)....... 21
Ward v. District of Columbia, 494 A.2d 666 (D.C.
Db hsb Un 4 0b DA OAM AENSS ORR DECRUES REDS UR WON 10, 16
West Ohio Gas Co. v. Public Utils. Comm’n (No. 1),
See se EE Nh hand etevecedceresadeesaecine 18
Whalen v. United States, 445 U.S. 684 (1980) ....... 12, 19
Wilson v. Garcia, 471 U.S. 261 (1985) .............. 21
CONSTITUTIONAL PROVISIONS,
STATUTES, AND RULES
es Ss Se i I OF oes bee ik cue ceded's 3, 13,14
Siete SE, GI. OW oo ond cdo veedicnsacdececcccens 21
tf ee Se PSPC T Tee ee 18
Si. Gs MIE, Blin ook ccc cncn teed cvcnsceanweer 14
Ses TE EN 6.0444 os cnc eNcceccsvenstbesissceness 3, 4
Fs SU EE Seve ccs dnc cscccevganesececesesesses 3, 4
me Fe 8). | reer rr Terr rrr rer 13
oto Ee Uk errr Terr rere e rere 4, 14
Loe Feo Fi. || errr errr rer errr rrr T 14
Di. Came B FSIS CEFR ov ose scscessevssnavee -~
veme Fee 2). | eer. 15
Xvi
PAGE
Some Beis oF Fi. |) ee 12
DG. Cote § 1i-68 at ai. GORGE 6 cs kievcncctveeens 12
some Re 8 Pee ere ee 3, 4
ED... Cole © Be CH 0 eee cicev nes vekennunas 15
2.6. Gade IR S00 CIGD ose seckscetinceeses 3, 4, 2l, Z
a on! | ene f=! 4, 6, 8, 13
ee ee SS Pree ee eee 17
home £ PrrerrrrrrrriTyT Tors 17
MISCELLANEOUS
Hearings before Subcommittee on Business, Com-
merce, and Judiciary, Senate Committee on the Dis-
trict of Columbia, 92d Cong., Ist Sess. (1972)..... 22
—
IN THE
Supreme Court of the United States
OCTOBER TERM, 1989
No. 89-_____
—_>
OWENS-CORNING- FIBERGLAS CORPORATION, GAF
CORPORATION, THE CELOTEX CORPORATION, CAREY
CANADA, INC., EAGLE-PICHER INDUSTRIES, INC.,
ARMSTRONG WORLD INDUSTRIES, INC., KEENE
CORPORATION, FIBREBOARD CORPORATION, OWENS-
ILLINOIS, INC., UNITED STATES GYPSUM COMPANY,
W.R. GRACE & COMPANY, NATIONAL GYPSUM
COMPANY, U.S. MINERAL PRODUCTS CoO., PFIZER INC.,
GEORGIA PACIFIC CORPORATION, H.K. PORTER
COMPANY, INC., SOUTHERN TEXTILE CORPORATION,
THE FLINTKOTE COMPANY, PITTSBURGH CORNING
CORPORATION, TURNER & NEWALL, PLC, ASBESTOS
CORPORATION, LTD., and PROKO INDUSTRIES, INC.,
Petitioners,
_—V—
THE DISTRICT OF COLUMBIA, A MUNICIPAL CORPORATION,
Respondent.
—
PETITION FOR A WRIT OF CERTIORARI
TO THE DISTRICT OF COLUMBIA
COURT OF APPEALS
Petitioners hereby seek this Court’s review, on a writ of
certiorari, of the judgment entered in this case by the District
of Columbia Court of Appeals.
|
2
OPINIONS BELOW
The opinion of the Court of Appeals below is reproduced
in the Appendix to this petition at pp. la-32a. The opinions
of the District of Columbia Superior Court in this case are
reproduced in the Appendix to this petition at pp. 35a-5Sa.
JURISDICTION
The decision of the District of Columbia Court of Appeals
was entered on August 24, 1989, and is reproduced in the
Appendix to this petition. Petitioners’ timely petition for
rehearing and rehearing en banc was denied by the District of
Columbia Court of Appeals on March 8, 1990. A copy of the
court’s order is reproduced in the Appendix hereto. The
jurisdiction of this Court is invoked under 28 U.S.C.
§§ 1257(a) and (b).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The following constitutional and statutory provisions are
involved: (1) United States Constitution, Article I, § 8, cl. 17;
(2) United States Constitution, Amendment V; (3) United
States Constitution, Amendment VII; (4) the District of
Columbia Self-Government and Governmental Reorganiza-
tion (‘‘Home Rule’’) Act, D.C. Code §§ 1-201 et seq.; (5)
D.C. Code § 12-301; (6) D.C. Code § 12-310; and (7) District
of Columbia Law 6-202. The texts of these constitutional and
statutory provisions are reproduced in the Appendix to this
petition, pursuant to Rule 21.1(f) of this Court.
STATEMENT OF THE CASE
The District of Columbia, a municipal corporation created
by Congress (the ‘‘District’’), has sued petitioners for com-
pensatory and punitive damages totaling $400 million for
alleged damage to approximately 2,400 buildings owned or
3
operated by the District. App. 3a. The trial court granted
motions for summary judgment and dismissed the District’s
claims as to the bulk of the buildings in the lawsuit, conclud-
ing that these claims were barred by the applicable statute of
limitations and statute of repose enacted by Congress pursu-
ant to its power ‘‘to exercise exclusive Legislation in all Cases
whatsoever’’ over the District of Columbia. U.S. Const. art.
I, § 8, cl. 17. In a lengthy opinion, a three judge panel of the
District of Columbia Court of Appeals reversed the trial
court’s rulings, holding that the District is exempt from both
the limitations and repose statutes under the common law
doctrine of nmullum tempus occurrit regi (‘‘nullum tempus’’),
which grants to sovereigns immunity from the operation of
limitations statutes. App. 5a, 20a. Petitioners seek review of
the panel’s decision.
I.
The District filed its complaint in this case on December
14, 1984. Through discovery, petitioners learned that the Dis-
trict had known of the factual predicates underlying its
claims for years, but brought its lawsuit long after the three
year statutory period had run. D.C. Code § 12-301. (App.
57a) In addition, discovery revealed that a majority of the
improvements to real property involved in this action were
completed long before the ten-year repose period created by
Congress in its 1973 enactment of D.C. Code § 12-310. (App.
57a-58a)
In 1986, petitioners moved for partial summary judgment
on statute of limitations and statute of repose grounds. After
petitioners’ first motion was filed, the Mayor hastily prepared
legislation, Bill 6-510, which later became D.C. Act 6-261,
seeking to exempt the District from the congressionally-
enacted limitations and repose statutes. App. 59a. Bill 6-510
by its terms retroactively applied to all actions pending on or
after July 1, 1986. App. 62a. Bill 6-510 was introduced, and
later passed, pursuant to the District of Columbia Self-
Government and Governmental Reorganization (‘‘Home
ltt
4
Rule’’) Act, D.C. Code §§ 1-201 et seg. The Home Rule Act
created no exemption or immunity on the part of the District
of Columbia from D.C. Code § 12-301 or § 12-310. Nor did
the Home Rule Act give the District government any author-
ity to grant itself immunity from D.C. Code § 12-301 or
§ 12-310.
In a race to complete action on Bill 6-510 before an unfa-
vorable ruling by the trial court,' the City Council used every
procedural shortcut at its disposal to expedite passage of
D.C. Law 6-202.’ The new statutes of limitations and repose
became effective on February 28, 1987.
Il.
On February 3, 1987, the trial court granted petitioners’
motions for summary judgment under the ‘‘old’’,
congressionally-enacted statutes of limitations and repose.
Applying this Court’s holding in Metropolitan Railroad Co.
1 Corporation Counsel urged the Judiciary Committee of the City
Council to enact the amendments promptly to ‘‘remove the [limitations] issue
from any doubt,’’ App. 50a, arguing that by expressly exempting the District
from the operation of statutory time-bars ‘‘the Council would be reaffirming
that the District has, since the enactment of the District of Columbia Self-
Government and Governmental Reorganization Act, become more like a
state than merely a municipal corporation in terms of its responsibilities and
its authority.”” Comments of James R. Murphy, Acting Corporation Coun-
sel, D.C., Before the Committee on the Judiciary Bill 6-510, the ‘‘District of
Columbia Statute of Limitations Amendment Act of 1986’’ 2 (Oct. 15,
1986). During oral argument before the Court of Appeals, counsel for the
District conceded that concern for the viability of this lawsuit was ‘‘the cata-
lyst’’ for Bill 6-510.
2 No public hearings were held; the ‘‘consent agenda’’ procedure was
used to dispense with public comment and a formal vote; and normal sched-
uling requirements were abandoned or waived so that approval would coin-
cide with the hearing on petitioners’ motions for summary judgment. App.
49a. The City Council approved the bill and sent it to the Mayor for signa-
ture. Final Council action on the bill took place on December 16, 1986, and
the bill was signed by the Mayor on January 8, 1987. D.C. Act 6-261.
5
v. District of Columbia, 132 U.S. 1 (1889), the trial court
held that ‘‘the statute of limitations applies to the District of
Columbia.’’ App. 35a. Finding no exemption for the District
from the statute of repose, the trial court also barred claims
for buildings substantially completed before January 17,
1970. App. 4la-42a.
After the ‘‘new’’ statutes of limitations and repose became
law, the District moved for reconsideration in light of its self-
created exemptions from operation of the statutes. After
another round of briefing and orai argument, the trial court
held that the amendments could not be applied retroactively
to this case because to do so would deprive petitioners of due
process and would contravene the separation-of-powers doc-
trine. The trial court also held that the District’s unique dual
status as litigant and law initiator made retroactive applica-
tion of the new law ‘‘manifestly unjust’? under Bradley v.
School Bd., 416 U.S. 696 (1974). App. 48a, 5la-52a. In the
trial court’s view, the District’s use of legislation to modify
the law for its own benefit in this case was fundamentally
un fair:
We have a situation where a major suit was filed in 1984
by the [District] government. It was faced with some
troublesome motions filed in 1986, and then proceeded
to do what no other litigant can do—it changed the rules
in its favor after the battle had been joined.
App. 48a-49a (emphasis in original). ‘‘[T]o change the rules
to be applied in this case’’ would be especially unfair, the
trial court concluded, because the District was legislating
*‘unabashedly in its own pecuniary self-interest.’’ App. Sla.
The trial court certified for interlocutory review all rulings
on the applicability of the statutes of limitations and repose
under prior law and in light of the new post-‘‘Home Rule”’
amendments.
6
ill.
On August 24, 1989, the Court of Appeals reversed the
trial court’s decision, holding that the District enjoys mu/lum
tempus immunity from the operation of limitations and
repose statutes. App. 24a. The Court of Appeals specifically
declined to reach or consider the constitutional infirmities
posed by D.C. Law 6-202, namely the District’s use of its leg-
islative function to change the substantive law in the middle
of major litigation which it brought. Rather, in an attempt to
avoid the obvious due process and separation-of-powers diffi-
culties presented by the District’s new law, the Court of
Appeals discovered a non-constitutional and non-statutory
“‘common law’’ nullum tempus immunity on the part of the
District of Columbia.’
The panel acknowledged in its opinion that nullum tempus
is a common law doctrine that provides immunity to sover-
eigns, and that the issue in this case is whether the District is
entitled to a privilege normally accorded only to the state
governments—or, of course, to the United States. App. 12a-
13a. The panel further acknowledged that under the Consti-
tution, Congress—and not the District government—is the
sovereign as to the District of Columbia, and that the District
of Columbia does not enjoy the sovereign privileges and
immunities granted by the Constitution to the States. App.
13a. The panel found it unnecessary, however, ‘‘to decide
that the District has a// the sovereignty of a state to conclude
that it enjoys the protection of the nullum tempus doctrine.”’
App. 18a (emphasis added). Nor did the panel apparently feel
constrained by this Court’s holding in Metropolitan Railroad
that mullum tempus is ‘‘[t]he prerogative . . . of the sover-
eign alone.”’’ 132 U.S. at 11.
Instead, the panel purported to adopt a ‘‘functional rather
than formalistic reading of the immunity issue.’’ App. 2la.
The panel held that the District enjoys mullum tempus immu-
nity ‘‘when it brings suit to vindicate public rights and
3 The Court of Appeals did not reach any question concerning the
effect of ‘‘Home Rule’’ on the constitutional propriety of D.C. Law 6-202
-
involving the performance of public functions.’’ App. 24a.
The panel then found that because the District is responsible
for the defense of the public interest and the public fisc in
the District of Columbia, the District government is entitled
to receive the benefit of Congress’s nullum tempus immunity.
App. 2la-23a. The panel did not address the fact that Con-
gress retains legislative authority over the District and has not
specifically delegated any kind of mullum tempus immunity to
the District.
While acknowledging the holding of Metropolitan Rail-
road, the panel felt that the District should now be exempted
from the operation of the statute of limitations when suing to
vindicate ‘‘a right to protect an intrinsically sovereign interest
or when exercising any right peculiarly that of a sovereign.”’
App. 16a. The lower court engaged in no discussion or analy-
sis of the constitutional or historical bases for the District's
new-found sovereignty. Nor did it suggest any legal basis for
in effect overruling this Court's century-old decision in Met-
ropolitan Railroad.
The panel then proceeded to accept the District's declara-
tion that it is suing to enforce a ‘‘public right in this case.’’
App. 3la. While suggesting that ‘‘something more is required
than a naked financial interest’’ in order to meet tne public
function requirement, App. 25a, the panel then ignored this
principle and adopted the District’s position that ‘‘[w]hen the
government sues to recover from wrongdoers, it serves a pub-
lic purpose... .’’ App. 29a-30a. Rather than remand the
case to the trial court for findings regarding the nature of
this suit, and the extent of any ‘‘public’’ rather than merely
proprietary purpose served by the District’s lawsuit—which is
the only claimed ‘‘public’’ right involved here—the panel
made a sua sponte, extra-record adjudication of material,
contested facts, and determined that this case, in which the
District is suing petitioners to recover money expended for
remedying alleged property damage to buildings owned or
leased by the District, serves a ‘‘public function.’’ The pane!
did not even bother to analyze separately the effect of the
new-found mullum tempus doctrine on the statute of repose.
Instead, it blanketly applied nu//um tempus to both the stat-
8
ute of limitations and the statute of repose, despite the fact
that petitioners’ substantive rights to repose have long since
vested.
IV.
Petitioners timely sought rehearing or rehearing en banc,
questioning the panel’s sua sponte, extra-record investigation
into the merits of the case, without opportunity for discovery
or briefing by petitioners. Petitioners further argued that the
panel erroneously construed the statute of repose as exempt-
ing the District, given that Congress enacted no such exemp-
tion, and given that petitioners’ rights of repose had vested
prior to enactment of the new legislation and prior to the
Court of Appeals’ decision. Petitioners also urged the court
to decide the constitutional questions raised by D.C. Law 6-
202. On March 8, 1990, petitioners’ request for rehearing was
denied. App. 33a-34a.
REASONS FOR GRANTING THE PETITION
Certiorari is warranted in this case for several interrelated
reasons. First, the District of Columbia Court of Appeals
improperly attempted to create its own rule exempting the
District from operation of statutes of limitation and the stat-
ute of repose, a position rejected by Metropolitan Railroad
Co. v. District of Columbia, 132 U.S. 1 (1889). The District
of Columbia Court of Appeals has no authority to overturn
decisions of this Court, and should not be permitted to do
so.
Second, Metropolitan Railroad is founded not just on com-
mon law—as the Court of Appeals appears to have
assumed—but also on the Constitution’s grant to Congress of
‘“exclusive’’ legislative authority over the District of Colum-
bia. The District of Columbia possesses no inherent or com-
mon law sovereign privilege or immunity. Accordingly,
nullum tempus immunity cannot be created by the District of
Columbia Court of Appeals, or by the District of Columbia
9
itself under supposed ‘‘Home Rule’’ authority. The District’s
legal and sovereign status is a timely and important question
presented squarely by this case. Certiorari is warranted to
delineate the Constitution’s grant of ‘‘exclusive’’ legislative
authority over the District of Columbia, and, conversely, the
limits of any inherent sovereign privilege or immunity
enjoyed by the District.
Certiorari is also warranted because the Court of Appeals’
mission to find a ‘‘public’’ purpose in the District of Colum-
bia’s action for damages to its real property interests improp-
erly led the Court of Appeals to opine on disputed issues of
material fact, without permitting an evidentiary inquiry or
scrutiny of the District’s assertions regarding its purpose in
this litigation. In this case, given the transparent effort by the
District to legislate away a defeat in this case—and to remove
rights vested by the statute of repose—scrutiny of the City’s
self-proclaimed ‘‘purpose’’ in litigation is a matter of consti-
tutional dimension.
I. The Lower Court’s Decision Is In Direct Conflict with
Metropolitan Railroad Co. v. District of Columbia, 132
U.S. 1 (1889).
Metropolitan Railroad Co. v. District of Columbia, 132
U.S. 1 (1889), holds that the District of Columbia statute of
limitations runs against the City. 132 U.S. at 12. The conflict
between Metropolitan Railroad and this case is patent. In
Metropolitan Railroad, the District sought damages for the
cost of repairing public streets. In terms of the District’s pur-
pose in preventing a loss to the treasury, in vindicating public
rights to health and safety, and in wielding a congressionally
mandated power, there is no material distinction between
Metropolitan Railroad and this case.* This Court held that
the City’s claims in Metropolitan Railroad were time-barred.
4 In Metropolitan Railroad, the District claimed damages of more
than $160,000, not an insubstantial sum for the early 1870s, when the Dis-
trict’s claim arose. 132 U.S. at 2. In Metropolitan Railroad, the District
claimed that it was seeking to enforce a public right. Supplemental Brief For
The Defendant In Error at 13-14, Metropolitan R.R. v. District of Colum-
bia, 132 U.S. 1 (1889).
10
Nothing has altered either the authority of this Court or its
law as to statutes of limitations of the District of Columbia
since 1889.°
The panel below sought to distinguish Metropolitan Rail-
road as follows:
[T)he Court intimated that the right asserted in Metro-
politan Railroad was not inherently sovereign, and that
the District, being a municipality, lacked intrinsic sover-
eignty. However, it left open the question whether the
District might be protected by nullum tempus when it
did acquire a right to protect an intrinsically sovereign
interest or when exercising any right which is peculiarly
that of a sovereign.
App. 16a. No authority is cited for this proposition, and no
reliance was placed on ‘‘Home Rule’’ legislation enacted
since Metropolitan Railroad. At base, the reasoning of the
Court of Appeals is impenetrable.
In fact, in Metropolitan Railroad, this Court reversed a
decision of the District of Columbia Supreme Court, which
had held that nullum tempus exempted the District from the
statute of limitations. The lower court in Metropolitan Rail-
road accepted the District’s argument that municipal corpora-
tions were not subject to statutes of limitations when
enforcing ‘‘public’’ rights—the same reasoning advanced by
the District and accepted by the Court of Appeals in this
5 The Court of Appeals itself has frequently recognized the supremacy
of this Court on matters of District of Columbia local law. See, e.g., Estep v.
Construction Gen., Inc., 546 A.2d 376, 382 n.5 (D.C. 1988) (‘‘the Supreme
Court is the third and last forum after the Superior Court and this court
. . . .» The Supreme Court, therefore, may properly construe local law in
contradiction to a holding of this court. . . .’’); Dodson v. Washington
Automated Co., 461 A.2d 1020, 1024 (D.C. 1983) (‘‘[w]e believe Rodriguez
[v. Compass Shipping Co., 451 U.S. 596 (1981)] is binding in the present dis-
pute’’). Cf. Meiggs v. Associated Builders, Inc., 545 A.2d 631 (D.C. 1988),
(involving a matter adopted by the District of Columbia Council, not Con-
gress), cert. denied, US. , 109 S.Ct. 3178 (1989). Significantly,
in Ward v. District of Columbia, 494 A.2d 666, 668 (D.C. 1985), the Court
of Appeals acknowledged that this Court’s decision in Metropolitan Railroad
is ‘‘binding’’ precedent that it must follow.
1]
case.° However, this Court soundly rejected that reasoning,
finding that immunity is the prerogative of the sovereign
alone. 132 U.S. at 11-12. Although this Court reserved for
possible exception from its decision actions regarding
“‘purprestures and public nuisances, by encroachments upon
the highways and other public places,’’ it made clear that this
potential exception would apply, if at all, only to an offense
‘against the sovereign power itself.’’ Jd. at 12.
The lower court panel in this case purported to invoke this
exception while incongruously asserting that it was unneces-
sary to reach the issue of sovereignty. App. 18a. It reasoned
that, under a ‘‘functional’’ analysis, when a municipality per-
forms a ‘‘public function,’’ it enjoys immunity from the run-
ning of time.’
However, this Court has never altered its view that nullum
tempus immunity applies only to sovereigns. See, e.g., Guar-
anty Trust Co. v. United States, 304 U.S. 126, 132-35 (1938).
The instant suit, initiated by a municipality, is in contract
and in tort for damages. Here there is no alleged ‘‘offense
against the sovereign power itself;’’ the District owns or
leases the properties in question, and petitioners pose no
impediment to the District’s control over them. Notwith-
standing the Court of Appeals’ attempt to fabricate a broad
6 District of Columbia v. Washi..gton & G. R.R., 1 Mackey 361
(1882). The District also pressed this line of redsoning on appeal to this Court
in Metropolitan Railroad:
This doctrine may be thus stated, that where a municipal corporation
is seeking to enforce some right belonging to it in a private or proprie-
tary sense it may be defeated by the statute of limitations; but where it
is seeking to enforce a right in respect of which it represents the public
or the State, or the right pertains to sovereignty, the statute has no
application.
Supplemental Brief For Defendant In Error at 13-14, Metropolitan R.R. v.
District of Columbia, 132 U.S. 1 (1889).
7 The District’s efforts to secure immunity and to revive its causes of
action were designed to relieve budgetary concerns rather than to address any
alleged hazard to the public health. This effort is of doubtful constitutional
validity. Cf. School Bd. v. United States Gypsum Co., 234 Va. 32, 360
S.E.2d 325, 329 (1987) (revival statute could not survive manufacturer’s due
process challenge, even under the state’s police power).
12
‘‘public function’’ exception to the Metropolitan Railroad
rule, this suit, like Metropolitan Railroad itself, is nothing
more than a belated action by the District to hold third par-
ties responsible for the cost of work it has performed. It cer-
tainly is not a suit to vindicate any ‘‘offense against the
sovereign power.”’
Metropolitan Railroad remains the law of the District, as
letermined by this Court while sitting in its capacity as the
highest court of the District of Columbia.* The District of
Columbia Court of Appeals cannot overrule Metropolitan
Railroad, as this Court should make clear.’ Review is there-
fore required.
8 In 1889, this Court was the sole appellate court hearing cases
brought initially in the District of Columbia’s Supreme Court. This Court
heard cases from the District of Columbia Supreme Court on writs of error.
See, e.g., Metropolitan Railroad, supra; Stanton v. Embry, 93 U.S. 548
(1876). This Court was thus the arbiter of District of Columbia law at the
time of Metropolitan Railroad. Although this Court’s appellate review of
District of Columbia court decisions has changed variously since 1889, com-
pare 27 Stat. 434 (1893) and D.C. Code § 11-101 ef seg. (1940) with D.C.
Code § 11-101 ef seg. (1981), none of these changes, or other changes in the
judicial systems operating in the District, diminishes the precedential value of
Metropolitan Railroad. Indeed, the distinct circumstances affecting this
Court’s jurisdiction over District of Columbia local law in 1889 serve only to
underscore the binding effect of Metropolitan Railroad on the District of
Columbia Court of Appeals. While the precise congeries of law and history
affecting this case may not recur frequently, certainly no body other than this
Court is in a position to grapple with the unique issues presented by this case.
9 Although this Court has recognized that it may be appropriate to
defer to decisions of the Court of Appeals in certain matters involving purely
local law, Pernell v. Southall Realty, 416 U.S. 363 (1974), it never has held
that the Court of Appeals is free to overturn prior binding decisions of this
Court. The statutory provisions at issue in this case were enacted by Congress
for the District of Columbia. Acts of Congress affecting only the District of
Columbia, like other federal laws, ‘‘certainly come within this Court’s Art.
III jurisdiction.’’ Whalen v. United States, 445 U.S. 684, 688 (1980). The
deference accorded the Court of Appeals on matters of local law ‘‘is a matter
of judicial policy, not a matter of judicial power,”’ and this Court will exer-
cise its jurisdiction over the District’s courts to correct ‘‘egregious error’’ and
where questions of general federal law ‘‘cannot be separated”’ from ques-
tions of local law. See Whalen, 445 U.S. at 688; Fisher v. United States, 328
U.S. 463, 476 (1946).
13
II. The Lower Court’s Disregard of Metropolitan Railroad
Derives From A Misperception of That Case’s Constitu-
tional Underpinnings and of the Legal Status of the Dis-
trict of Columbia, a Municipal Corporation.
Metropolitan Railroad is founded on the constitutional
grant to Congress of the power ‘‘[t]o exercise exclusive Legis-
lation in all Cases whatsoever’’ over the District of Colum-
bia. U.S. Const. art. I, § 8, cl. 17. The Constitution’s grant
of ‘‘[e]xclusive legislative power is in essence complete sover-
eignty.”’ S.R.A., Inc. v. Minnesota, 327 U.S. 558, 562
(1946). The District, at the time of Metropolitan Railroad as
well as today, is merely ‘‘a body corporate for municipal pur-
poses,’’ with the right to ‘‘sue and be sued, plead and be
impleaded,’’ D.C. Code § 1-102, and is ‘‘subject to the ordi-
nary rules that govern the law of procedure between private
persons’’— including the statutes of limitations and repose.
Metropolitan Railroad, supra, at 9.
This conclusion is consistent with well-settled constitutional
principles of sovereignty and governmental power. The Con-
stitution allocates no power or sovereignty of any kind to the
District of Columbia.'° Sovereignty cannot be created by the
common law. Sovereignty in the United States rests with the
people, who govern through a written Constitution. See, e.g.,
Penhallow v. Doane’s Adm’r, 3 U.S. 54, 93-94 (1795). Unless
provided for in the Constitution, sovereignty, and hence nu/-
lum tempus immunity, does not exist."
10 Congress’s 1973 ‘‘Home Rule’’ legislation does not affect this result.
Unfortunately, the Court of Appeals failed to grapple with post-‘‘Home
Rule’’ D.C. Law 6-202 or its constitutional infirmities.
11 This Court has recognized on other occasions that all sovereign
power within the territory of the United States resides either with
the Government of the United States, or [with] the States of the Union.
There exist within the broad range of sovereignty but these two. There
may be cities, counties, and other organized bodies with limited legisla-
tive functions, but they are all derived from, or exist in, subordination
to one or the other of these.
(footnote continued)
14
The Constitution allocates certain powers to Congress; all
other powers are reserved to the states and the people. U.S.
Const. amend. X. When the States of Maryland and Virginia
ceded the areas that became the District of Columbia,” they
relinquished their legislative power—and hence their
sovereignty—over the District to Congress. U.S. Const. art.
I, § 8, cl. 17. The District, therefore, has no sovereignty of
its own, and has ‘‘adopted the whole body of Congress for
its legitimate government.’’ Loughborough v. Blake, 18 U.S.
317, 324 (1820)."°
In the century following Metropolitan Railroad, Congress
enacted a comprehensive statutory code pertaining specifically
United States v. Kagama, 118 U.S. 375, 379 (1886). Thus, ‘‘[w]e are a nation
not of ‘city-states’ but of States.’ Community Communications Corp. v.
City of Boulder, 455 U.S. 40, 54 (1982). The District, which is neither a part
of the federal government nor a state of the unic.), is not entitled to any type
of sovereign privilege or immunity.
12. +The territory ceded to Congress by Virginia was returned by Act of
Congress in 1846.
13. The Tenth Amendment provides that ‘‘[t]he powers not delegated to
the United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.”’ It ‘‘states but a truism
that all is retained which has not been surrendered.’’ United States v. Darby,
312 U.S. 100, 124 (1941). Under the Constitution, the exclusive legislative
power of the District, and its complete sovereignty, were surrendered to Con-
gress. Nor did the District of Columbia Self-Government and Governmental
Reorganization Act (the ‘‘Home Rule Act’’) alter the District’s sovereign
statutes. In the Home Rule Act, Congress also expressly reserved to itself the
right to act as the District’s legislature:
Notwithstanding any other provision of this Act, the Congress of the
United States reserves the right, at any time, to exercise its authority as
legislature for the District, by enacting legislation for the District on
any subject. . . , including legislation to amend or repeal any law in
force in the District prior to or after enactment of this Act and any act
passed by the Council.
D.C. Code § 1-206. See also D.C. Code § 1-201 (purpose of the Home Rule
Act was to delegate certain legislative powers to the District government,
‘‘fs]ubject to the retention by Congress of the ultimate legislative authority
over the nation’s capital’’).
15
to the District of Columbia and addressing directly the ques-
tion of immunity from limitations. Congress knew of the law
settled by Metropolitan Railroad,'* yet never took action to
provide immunity for the District from the statutes of limita-
tions or repose. If Congress had intended to exempt the Dis-
trict generally from the statutes at issue in this case, it would
have done so expressly,’* as it has for the United States,’* and
in specific instances, for the District.!’
Nor does the fact that Congress has delegated to the Dis-
trict the power to perform certain ‘“‘public functions’’ provide
the District with implicit immunity from the statutes of limi-
tations and repose, as the panel below held.’* In Metropolitan
14 Congress, by an act of March 3, 1891 (26 Stat. 870), required the
Metropolitan Railroad Co. to pay the judgment against it within 18 months,
or lose its charter. Subsequently, the company sought and received an exten-
sion. 27 Stat. 399. By an act of August 2, 1894 (28 Stat. 218), Congress
granted another extension, provided that the company consent to waive its
statute of limitations defense and submit to a final resolution of the dispute
by the District of Columbia Court of Appeals. See District of Columbia v.
Metropolitan R.R., 8 App. D.C. 322 (1896) (awarding District $34,136.12,
with interest).
1S It is appropriate ‘‘to assume that Congress legislated with care,’’ and
that if Congress had intended a certain result, ‘‘it would have said so
expressly, and not left the matter to mere implication.’’ Palmore v. United
States, 411 U.S. 389, 395 (1973). Once Congress addresses a subject, even
one previously governed by common law, ‘‘the task of the. . . courts is to
interpret and apply statutory law, not to create common law.’’ Northwest
Airlines v. Transport Union of Am., 451 U.S. 77, 96 n.34 (1981).
16 ‘Sections 12-301, 12-302, 12-305, and 12-307 do not apply to an
action in which the United States is the real and not merely the nominal
plaintiff.’ D.C. Code § 12-308 (1989) (enacted December 23, 1963).
17 See, e.g., D.C. Code § 7-515 (1989) (exempting District from limita-
tions concerning claims arising out of construction of Fern and Varnum
Streets and Eastern Avenue Viaducts) (enacted March 3, 1927); D.C. Code
§ 7-1415 (exemption dealing with construction of subways and viaducts).
18 The Court of Appeals itself observed on another occasion that it is
not likely that the holding in Metropolitan Railroad is affected by changes in
the status of the District effectuated by passage of the Home Rule Act. Ward
16
Railroad, this Court reviewed the short-lived nineteenth cen-
tury version of ‘‘home rule’’ in the District and found that
*‘subordinate legislative powers of municipal character which
have been or may be lodged in the city corporation, or in the
District corporation, do not make those bodies sovereign.’’
132 U.S. at 9 (emphasis added).
And, of course, this Court has expressly rejected the
notion that a sovereign’s delegation of home rule to a munic-
ipality implies a delegation of sovereign immunities. Commu-
nity Communications Corp. v. City of Boulder, 455 U.S. 40
(1982).
Granting certiorari to review the legal status of the District
of Columbia is timely and a matter of constitutional signifi-
cance. This case presents an opportunity for this Court to
emphasize that sovereign powers and immunities cannot be
created dehors the Constitution. It also presents this Court
with a unique opportunity to make clear that the District’s
exercise of ‘‘Home Rule’’ authority must be accomplished
within the constitutional confines of due process and separa-
tion of powers.
v. District of Columbia, 494 A.2d 666, 668 (D.C. 1985). It is telling that the
decision below stretched to find such an implicit delegation of immunity,
notwithstanding its own contrary precedent, rather than address the express
immunity purportedly granted to the District by statute in 1987.
19 ‘It has long been established that the District’s municipal authorities
have only that legislative authority which Congress has given them. Mary-
land & Dist. of Columbia Rifle & Pistol Ass’n v. Washington, 294 F. Supp.
1166 (D.D.C. 1969), aff'd, 442 F.2d 123 (D.C. Cir. 1971); Neild v. District
of Columbia, 110 F.2d 246 (D.C. 1940). Moreover, ‘‘[IJegislative grants of
power to municipal corporations are to be so strictly construed as to operate
as a surrender of . . . sovereignty. . . no further than is expressly declared
by the language thereof.’’ Boise City Artesian Hot & Cold Water Co. v.
Boise City, 123 F. 232 (9h Cir. 1903) (citing Proprietors of Charles River
Bridge v. Proprietors of Warren Bridge, 36 U.S. 420 (1837)).
Pe —
17
Ill. The Mere Declaration By The Government of a ‘‘Pub-
lic’? Purpose Cannot Be Sufficient To Preclude Eviden-
tiary Consideration of Material Facts In Dispute or
Judicial Scrutiny of the Activities Allegedly Constituting
the ‘‘Public’’ Purpose.
Based on its own analysis, the disposition of this case by
the District of Columbia Court of Appeals hinged on its
determination that the District’s lawsuit seeks to vindicate a
“*public’’ right. However, the factual predicate for determin-
ing the issue of ‘‘public’’ right was created sua sponte by the
court without a factual record.
Decisions by this Court on the standards for summary
judgment have restated the principle of Fed. R. Civ. P.
56(c)” that summary judgment shall only be granted where
** ‘the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of
law.’ ’’ Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). See also Celotex Corp. v. Catrett, 477 U.S. 317
(1986). The only factual materials upon which it is appropri-
ate for a reviewing court to rely in ruling on a motion for
summary judgment are materials of record in the court
below.
The panel here improperly relied upon extra-record
information—including contested and controversial scientific
studies—to opine on material issues of disputed fact. In so
doing, the court deprived petitioners of their right to have the
factfinder decide the material factual issues in dispute. As
this Court has held, ‘‘credibility determinations, the weight
of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge
.... Liberty Lobby, supra, 477 U.S. at 255. In this case,
the factual question of whether the District’s lawsuit seeks to
vindicate a ‘‘public’’ right is potentially dispositive of the
bulk of the City’s claimed $400 million in damages.
20 The Supreme Court decisions cited herein interpret Fed. R. Civ. P.
56, from which D.C. Rule 56 is derived.
18
Where an important decision turns on questions of fact,
due process demands a meaningful opportunity to confront
adverse evidence. Goldberg v. Kelly, 397 U.S. 254, 269
(1970). The court’s independent inquiry into the merits o' | 1e
District’s claims resulted in a ‘‘secret, one-sided determina-
tion of facts decisive of [petitioners’] rights’’ in this case.
Joint Anti-Fascist Refugee Comm. v. McGrath, 341 U.S.
123, 170 (1951) (Frankfurter, J., concurring). Secrecy, of
course, is inimical to judicial truth-seeking, id. at 171, but it
is doubly improper where, as here, the factual issues are
highly controverted, material, and bear directly on one of the
pivotal questions in the case. Gonzales v. United States, 348
U.S. 407, 413-14 (1955). See also Pernell v. Southall Realty,
416 U.S. 363 (1974) (lawsuits ‘‘cannot be resolved with due
process of law unless both parties have had a fair opportu-
nity to present their cases’’); Grannis v. Ordean, 234 U.S.
385, 394 (1914); West Ohio Gas Co. v. Public Utils. Comm’n
(No. 1), 294 U.S. 63 (1935); Morgan v. United States, 304
U.S. 1, 22 (1938).
In short, the mere declaration by a governmental entity
that it is engaging in a ‘‘public purpose’”’ is insufficient to
create a governmental immunity.
In addition, in this case, the Court of Appeals’ reliance on
extra-record materials in reaching its conclusion that the Dis-
trict is pursuing this action to enforce a ‘‘public’’ right also
raises concerns with respect to the Seventh Amendment right
to a jury trial.”’ As this Court has observed, the Seventh
Amendment establishes a federal policy that requires issues of
fact in civil actions to be determined by a jury. Byrd v. Blue
Ridge Rural Elec. Coop., 356 U.S. 525 (1958); Slocum v.
New York Life Ins. Co., 228 U.S. 364 (1913) (under the Sev-
enth Amendment, ‘‘it is the province of the jury to hear the
evidence and by their verdict to settle issues of fact’’); see
also Hunt v. Bradshaw, 251 F.2d 103, 108 (4th Cir. 1958)
21 The provisions of the Seventh Amendment are fully applicable to the
District of Columbia’s courts. Pernell v. Southall Realty, 416 U.S. 363, 370
(1974); Capital Traction Co. v. Hof, 174 U.S. 1 (1899); see also E.R.B. v.
J.H.F., 496 A.2d 607 (D.C. 1985); Carithers v. District of Columbia, 326
A.2d 798 (D.C. 1974).
APOE 6 Rt PTE OD 0 PLAN ALE SOM. PREP,
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19
(‘‘where there is a debatable issue of fact in the trial of a suit
at common law in a court of the United States, the right to
have it determined by a jury is guaranteed by the Seventh
Amendment of the Constitution’’).
The Court of Appeals’ consideration of evidence not con-
tained in the record demonstrates a significant departure
from the accepted and usual course of judicial proceedings
and warrants review by this Court. See, e.g., New York City
Transit Auth. v. Beazer, 440 U.S. 568, 568-569 (1979) (‘‘[t]he
departure by those courts from the procedure normally fol-
lowed in addressing statutory and constitutional questions in
the same case, as well as concern that the merits of these
important questions had been decided erroneously, led us to
grant certiorari’); McNabb v. United States, 318 U.S. 332
(1943).
IV. Rights Vested By the Congressionally-Enacted District of
Columbia Statute of Repose May Not Be Removed
Absent Due Process.
The lower court impermissibly deprived petitioners of a
vested right to immunity from suit afforded them by an Act
of Congress.” The District of Columbia statute of repose is
not merely a statute of limitations that bars a party’s remedy
if an action is not timely filed. Sandoe v. Lefta Assocs., 599
A.2d 732, 736 n.5 (D.C. 1988). Instead, it affords immunity
from suit, a right of repose which ‘‘prevent[s] what might
otherwise be a cause of action, from ever arising.’’ President
of Georgetown College v. Madden, 505 Supp. 557, 573 (D.
Md. 1980), aff’d in part, dismissed in part, 660 F.2d 91 (4th
Cir. 1981). The District’s statute of repose was explained in
Madden, supra:
22 This Court has jurisdiction to review decisions of the Court of
Appeals concerning matters of statutory construction of the D.C. Code
(‘‘Acts of Congress applicable only within the District of Columbia’’) where
a constitutional claim cannot be separated entirely from a resolution of the
question of statutory construction. See Whalen v. United States, 445 U.S.
684, 687-88 (1980).
20
{I]njury occurring more than ten years after the negli-
gent act responsible for the harm, forms no basis for
recovery. The injured party literally has mo cause of
action. The harm that has been done is damnum absque
injuria—a wrong for which the law affords no redress
The function of the statute [of repose] is thus rather to
define substantive rights than to alter or modify a
remedy.
505 F. Supp. at 573, citing Rosenberg v. Town of North
Bergen, 61 N.J. 190, 199-200, 293 A.2d 662, 666-67 (1972).
Other jurisdictions have recognized that the rights con-
ferred by statutes of repose warrant constitutional protection
where the rights have matured or become vested. The
Supreme Court of Virginia, for example, recently held that
Virginia’s statute of repose operates against the Common-
wealth despite Virginia’s contention that it was immune
under the mullum tempus doctrine. The court explained that
‘‘when a statute of repose has run on a tort claim, all causes
of action are extinguished, ‘creating a substantive right of
repose in the potential defendants’ which the legislature may
not abridge.’’ Commonwealth v. Owens-Corning Fiberglas
Corp., 238 Va. 595, 385 S.E.2d 865 (1989) citing Roller v.
Basic Constr. Co., 238 Va. 321, 384 S.E.2d 323 (1989). Most
significantly, the court noted that ‘‘[t]he exemption from suit
accorded those named in the statute [of repose] is a substan-
tive right protected by the due process clause of the Constitu-
tion of Virginia ... .”* Id. (emphasis added).* See also
School Bd. v. United States Gypsum Co., 234 Va. 32, 360
S.E.2d 325 (1987).
Similarly, in First United Methodist Church v. United
States Gypsum Co., 882 F.2d 862 (4th Cir. 1989), cert.
denied, U.S. ___, 110 S.Ct. 1113 (1990), the United
23. In Commonwealth v. OQwens-Corning, supra, the court dealt only
with the due process clause of the Constitution of Virginia, Article I, Section
II (‘‘[NJo person shall be deprived of his life, liberty, or property without due
process of law. . . .’’). The court’s analysis, however, is equally applicable
and compelling under the due process clause of the United States Constitu-
tion,
21
States Court of Appeals for the Fourth Circuit, construing
Maryland’s statute of repose, explained:
A statute of repose creates a substantive right in those
protected to be free from liability after a legislatively
determined period of time ... . [Such statutes] are
based on considerations of the economic best interests of
the public as a whole and are substantive grants of
immunity based on a legislative balance of the respective
rights of potential plaintiffs and defendants struck by
determining a time limit beyond which liability no longer
exists.
Id. at 866. See also Goad v. Celotex Corp., 831 F.2d 508 (4th
Cir. 1987), cert. denied, 487 U.S. 1218 (1988). The rationale
for this policy is that ‘‘[j]ust determinations of facts cannot
be made when, because of the passage of time, the memories
of witnesses have faded or evidence is lost.’’ Wilson v. Gar-
cia, 471 U.S. 261, 271 (1985); see also United States v.
Kubrick, 444 U.S. 111 (1979) (statutes of repose ‘‘protect
defendants and courts from having to deal with cases in
which the search for truth may be seriously impaired by the
loss of evidence .. . , fading memories, disappearance of
documents, or otherwise’’).*“
A vested right to an existing defense, like a vested right of
action, is a property right protected by the due process clause
of the Fifth Amendment. See Pritchard v. Norton, 106 U.S.
124, 132 (1882). Neither the statute of repose nor its legisla-
tive history suggests that Congress intended to exempt the
District from its operation. The all-inclusive language of
D.C. Code § 12-310 demonstrates that the statute was
intended to apply to a// buildings, including those owned or
leased by the District.
24 The fundamental distinction between statutes of repose and statutes
of limitations is particularly crucial in this case because the panel’s decision
turned on the application of nulilum tempus. Because a statute of repose pro-
vides that, regardless of the plaintiff's diligence, a cause of action mever
comes into being if injury does not occur within a certain period of time, mul-
lum tempus—which aims to preserve accrued public rights that otherwise
would be lost due to the sovereign’s negligence in belatedly filing suit—
simply has no application.
22
The statute of repose applied in this case provided that
‘fany action’’ to recover damages for injury resulting from a
defective or unsafe condition ‘‘shall be barred’’ unless the
injury occurs within ten years of the date of substantial com-
pletion or improvement thereto. D.C. Code § 12-310 (empha-
sis added). The Court of Appeals itself construed the phrase
‘‘any action’’ in the statute to mean literally any action,
regardless of the parties to the dispute. See J.H. Westerman
Co. v. Fireman’s Fund Ins. Co., 499 A.2d 116, 120 (D.C.
1985). The court also held that ‘‘when Congress sought to
exclude a particular class from the operation of § 12-310, it
did so expressly.’’ Id.; see also Hearings before Subcommit-
tee on Business, Commerce, and Judiciary, Senate Committee
on the District of Columbia, 92d Cong., Ist Sess. (1972);
Block v. North Dakota ex rel. Bd. of Univ. & School Lands,
461 U.S. 273, 290 (1983) (questioning the applicability of nu/-
lum tempus to a congressionally-imposed statute of limita-
tions).
The panel below ignored the Court of Appeals’ own con-
struction of D.C. Code § 12-310 in favor of a contrary rule
that treats the repose statute as a limitations statute subject
to nullum tempus immunity. And, the lower court permitted
vested rights to be removed by governmental action, despite
the explicit act of Congress. Certiorari should be granted in
order to consider the due process claims of petitioners.
23
CONCLUSION
For the foregoing reasons, the petition for a writ of certio-
rari should be granted.
Respectfully submitted,
WILLIAM S. GARDNER PAUL A. ZEVNIK*
THOMAS J. O’BRIEN PETER C. CONDRON
MORGAN, LEWIS KAYE, SCHOLER, FIERMAN,
& BOCKIUS HAYS & HANDLER
1800 M Street, N.W. 901 15th Street, N.W.
Washington, D.C. 20036 Washington, D.C. 20005
(202) 467-7000 (202) 682-3500
Counsel for United States Counsel for GAF Corporation
Gypsum Company
Of Counsel:
JOHN F. MAHONEY, Jr.
MAHONEY, HOGAN,
HEFFLER & HEALD
777 14th Street, N.W.
Suite 600
Washington, D.C. 20005
(202) 347-6161
Counsel for Owens-Corning
Fiberglas Corporation
DRAKE C. ZAHARRIS
PARKS, HANSEN & DITCH
Mercantile Towson Building
Suite 1012
409 Washington Avenue
Towson, Maryland 21204
(301) 821-6350
Counsel for The Celotex Corporation
and Carey Canada, Inc.
24
RICHARD J. MCMILLAN
CROWELL & MORING
1001 Pennsylvania Avenue, N.W.
Washington, D.C. 20004-2505
(202) 624-2500
Counsel for Eagle-Picher Industries, Inc.
KEVIN C. MCCORMICK
WHITEFORD, TAYLOR & PRESTON
Suite 1400
Seven St. Paul Street
Baltimore, Maryland 21202
(301) 347-8700
Counsel for Armstrong World
Industries, Inc.
QUENTIN R. CORRIE
ANDERSON & QUINN
Suite 370
12450 Fair Lakes Circle
Fairfax, Virginia 22033
(703) 573-3520
Counsel for Keene Corporation
JOHN A. SUTHERLAND, JR.
SICILIANO, ELLIS, DYER & BOCCAROSSE
10521 Judicial Drive
Suite 300
Fairfax, Virginia 22030
(703) 385-6692
Counsel for Fibreboard Corporation
EDWARD J. LOPATA
DWIGHT D. MURRAY
JORDAN, COYNE, SAVITS & LOPAT~
1030 15th Street, N.W.
Washington, D.C. 20005
(202) 371-1800
Counsel for W.R. Grace & Company
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MICHAEL QUINN
CAHILL GORDON & REINDEL
1990 K Street, N.W.
Washington, D.C. 20006
(202) 862-8900
Counsel for W.R. Grace & Company
JOHN CALENDER
KATHRYN KUSSKE
CLIFFORD & WARNKE
815 Connecticut Avenue, N.W.
Washington, D.C. 20006
(202) 828-4248
Counsel for Owens-Illinois
Corporation
ARLENE FICKLER
HOYLE, MORRIS & KERR
1424 Chestnut Street
Philadelphia, Pennsylvania 19102
(215) 981-5700
Counsel for National Gypsum Company
CHARLES R. BRUTON
ROLIN P. BISSELL
SCHNADER, HARRISON, SEGAL & LEWIS
Suite 3600, 1600 Market Street
Philadelphia, Pennsylvania 19103
(215) 751-2686
Counsel for Pfizer Inc.
WILLIAM CLAGUE
LENNOX COOPER
BASTIAN, CLAGUE & CLANCY
4701 Sangamore Road
Bethesda, Maryland 20816
(301) 320-5500
Counsel for U.S. Mineral Products
Company
26
THOMAS S. SCHAUFELBERGER
DRINKER, BIDDLE & REATH
901 15th Street, N.W.
Washington, D.C. 20005
(202) 842-8800
Counsel for Georgia-Pacific
Corporation
NANCY E. GREGOR
GERTRUDE C. BARTEL
KRAMON & GRAHAM
Sun Life Building
Charles Center
Baltimore, Maryland 21201
(301) 752-6030
Counsel for H.K. Porter Company, Inc.
and Southern Textile Corporation
STEVEN D. CUNDRA
ROCHELLE HINDMAN
THOMPSON, HINE & FLORY
1920 N Street, N.W.
Washington, D.C. 20036
(202) 331-8800
Counsel for The Flintkote Company
TIMOTHY J. BLOOMFIELD
DUNNELLS, DUVAL & PORTER
2100 Pennsylvania Avenue
Washington, D.C. 20037
(202) 861-1400
Counsel for Pittsburgh-Corning
Corporation
WYATT B. DURRETTE, JR.
BRADLEY B. CAVEDO
DURRETTE, IRVIN & LEMONS, P.C.
600 Main Street
Twentieth Floor
Richmond, Virginia 23219
(804) 780-0505
Counsel for Tyrner & Newall, PLC
CHARLES E. GALLAGHER, Jr.
O’MALLEY, MILES & HARRELL
99 Commercé Place
P.O. Box
Upper Marlboro, Maryland 20773
(301) 350-1300
Counsel for Asbestos Corporation Limited
BRYAN KENNEY
JAMES R. EYLER
MILES & STOCKBRIDGE
10 Light Street :
Baltimore, Maryland 21202
Counsel for Proko Industries, Inc.
Counsel for Petitioners
June 6, 1990 * Counsel of Record
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APPENDIX
la
Appendix
DISTRICT OF COLUMBIA COURT OF APPEALS
No. 87-1254
aoe
DISTRICT OF COLUMBIA,
Appellant,
—V—
OWENS-CORNING FIBERGLAS CORPORATION, ET AL.,
Appellees.
>
Appeal from the Superior Court
of the District of Columbia
(Hon. Peter W. Wolf, Trial Judge)
(Argued March 1, 1989 Decided August 24, 1989)
>
Lutz Alexander Prager, Assistant Deputy Corporation
Counsel, with whom Frederick D. Cooke, Jr., Corporation
Counsel, and Charles L. Reischel, Deputy Corporation Coun-
sel, were on the brief, for appellant.
Paul A. Zevnik, for appellee GAF Corporation, with
whom Andrew A. Cohen and L. Elise Dieterich, for appellee
GAF Corporation, and William S. Gardner, Thomas J.
O’Brien, and Michel Y. Horton, for appellee United States
Gypsum Company, were on the brief.
John F. Mahoney, Jr., entered an appearance for appellee
Owens-Corning Fiberglas Corporation.
Chris Russo entered an appearance for appellees Cclotex
Corporation and Carey Canada, Inc.
Richard McMillan, Jr., entered an appearance for appellee
Eagle-Picher Industries.
Kevin McCormick entered an appearance for appellee
Armstrong World Industries.
2a
Quentin R. Corrie entered an appearance for appellee
Keene Corporation.
Edgar A. Sabanegh entered an appearance for appellee
Fibreboard Corporation.
Andre Jay Graham and Lee H. Ogburn entered appear-
ances for appellees Southern Textile Corporation and H.K.
Porter Company.
John G. Calender entered an appearance for appellee
Owens-Illinois, Inc.
Richard W. Boone and Vicki J. Hunt entered appearances
for appellee CertainTeed Corporation.
Edward J. Lopata and Dwight D. Murray entered appear-
ances for appellee W.R. Grace and Company.
John M. Bray and Charles B. Wayne entered appearances
for appellee National Gypsum Company.
Patrick Mochu entered an appearance for appellee U.S.
Mineral Products Company.
Charles R. Bruton and Shelley Spencer entered appearances
for appellee Pfizer, Inc.
Theresa Hajost entered an appearance for appellee
Georgia-Pacific Corporation.
Marianne Eby entered an appearance for appellee Proko
Industries, Inc.
Steven D. Cundra and Rochelle Hindman entered appear-
ances for appellee Flintkote Company.
John B. Isbister and William W. Carrier entered appear-
ances for appellee Raymark Industries, Inc.
Stephen A. Bogorad entered an appearance for appellee
Pittsburgh Corning Corporation.
Bradley B. Cavedo entered an appearance for appellees
Turner and Newall PLC; J.W. Roberts, Ltd.; and Turner
Asbestos Fibres, Ltd.
Kevin J. McCarthy and Charles E. Gallagher entered
appearances for appellee Asbestos Corporation Ltd.
ined
3a
Before MACK, BELSON and TERRY, Associate Judges.
<i
MACK, Associate Judge: The District of Columbia brought
suit, sounding in tort, against thirty-seven miners, manufac-
turers, sellers and distributors of asbestos, a toxic substance
until recently in common use in building construction, to
recover removal costs and other damages associated with
asbestos installation in roughly 24C0 public buildings, includ-
ing schools, libraries, hospitals, government offices, and pub-
lic housing. The trial court granted summary judgment as to
about eighty percent (80%) of the claims, holding them to be
barred by the then-effective statute of limitations, D.C. Code
§ 12-301 (1981),' and statute of repose on building improve-
ments, D.C. Code § 12-310 (1981).* The District contended,
1 D.C. Code § 12-301 was later amended by D.C. Law 6-202, 34 D.C.
Reg. 527, 1885 (1987), infra note 3. Prior to amendment, it read in relevant
part as follows:
§ 12-301. Limitation of time for bringing actions.
Except as otherwise specifically provided by law, actions for the fol-
lowing purposes may not be brought after the expiration of the period
specified below from the time the right to maintain the action accrues:
(8) for which a limitation is not otherwise specially prescribed—3
ae
2 D.C. Code § 12-310, also later modified by D.C. Law 6-202, infra
note 3, read, prior to its amendment, as follows:
§ 12-310. Actions arising out of death or injury caused by defective or
unsafe improvements to real property.
(a)(1) Except as provided im sybsection (b), any action—
(A) to recover damages for
(i) personal injury,
(ii) injury to real or personal property, or
(iii) wrongful death, resulting from the defective or unsafe con-
dition of an improvement to real property, and
4a
and contends on appeal, that it enjoys sovereign or municipal
immunity from the running of the statutes of limitations and
repose, particularly when suing in its governmental capacity
to protect public safety or health.
Notwithstanding this contention, while the case was still
pending, the Council of the District of Columbia passed leg-
islation, D.C. Law 6-202,’ specifically exempting the District
(B) for contribution or indemnity which is brought as a result of
such injury or death, shall be barred unless in the case where injury
is the basis of such action, such injury occurs within the ten-year
period beginning on the date the improvement was substantially
completed, or in the case where death is the basis of such action,
either such death or the injury resulting in such death occurs within
such ten-year period.
(2) For purposes of this subsection, an improvement tc real property
shall be considered substantially completed when—
(A) it is first used, or
(B) it is first available for use after having been completed in
accordance with the contract or agreement covering the improve-
ment, including any agreed changes to the contract or agreement,
whichever occurs first.
(b) The limitation of actions prescribed in subsection (a) shall noi
apply to—
(1) any action based on a contract, express or implied, or
(2) any action brought against the person who, at the time the defec-
tive or unsafe condition of the improvement to real property caused
injury or death, was the owner of or in actual possession or contro! of
such real property.
3 34D.C. Reg. 527, 1885 (1987) (codified at D.C. Code §§ 12-301, 12-
310 (1989)).
D.C. Law 6-202 amends D.C. Code § 12-301 by (1) extending the statute
of limitations ‘‘for the recovery of damages for an injury to real property
from toxic substances including products containing asbestos’’ to ‘‘S years
from the date the injury is discovered or with reasonable diligence should
have been discovered’’; and (2) exempting the District of Columbia from
application of the statute. It amends D.C. Code § 12-310(b) by adding sub-
sections (3) and (4), which, respectively, prevent the statute of repose from
applying to ‘‘any manufacturer or supplier of any equipment or machinery
or other articles installed in a structure upon real property’’ and ‘‘any action
brought by the District of Columbia government.”’ Finally, it adds section
12-311 to the D.C. Code, which reads:
:
;
:
4
:
;
3
Sa
from these provisions. By its terms, the law applied retroac-
tively to all cases pending as of July 1, 1986, and therefore to
the instant case. However, as the legislation awaited expira-
tion of the thirty-day congressional approval period before
becoming effective, the trial court entered an order dismissing
the claims now on appeal.
Before this court, the District argues that it enjoyed sover-
eign immunity by virtue of common law, or, in the alterna-
tive, by the effect of statute. Appellees contest both
arguments. They argue that the District is a municipality
unentitled to any of the incidents of sovereignty, and renew
their contention that the retroactive legislation, passed for the
very purpose of curing the District’s defective immunity, vio-
lated due process principles and the separation of powers.
We conclude that the District of Columbia enjoys a
common-law municipal immunity from the effects of the stat-
utes of limitations and repose when suing in its municipal
capacity to vindicate public rights. Because this ruling is ade-
§ 12-311. Actions arising out of death or injury caused by exposure to
asbestos.
(a) In any civil action for injury or illness based upon exposure to
asbestos, the time for the commencement of the action shall be the
later of the following:
(1) Within one year after the date the plaintiff first suffered dis-
ability; or
(2) Within one year after the date the plaintiff either knew, or
through the exercise of reasonable diligence should have known,
that the disability was caused or contributed to by the exposure.
(b) ‘‘Disability’’ as used in subsection (a) of this section means the
loss of time from work as a result of the exposure that precludes the
performance of the employee's regular occupation.
(c) In an action for wrongful death of any plaintiff's decedent,
based upon exposure to asbestos, the time for commencement of an
action shall be the later of the following:
(1) Within one year from the date of the death of the plaintiff's
decedent; or
(2) Within one year from the date the plaintiff first knew, or
through the exercise of reasonable diligence should have known,
that the death was caused or contributed to by the exposure.
6a
quate to reinstate the claims dismissed by the trial court, we
find it unnecessary to reach issues relating to the constitu-
tional validity of D.C. Law 6-202.‘ We begin our analysis
with a more detailed review of the nature of this litigation,
including the interests at stake and procedural posture of the
case. We then proceed to the merits.
1. BACKGROUND
A. The Asbestos Hazard and Its Public Health
Consequences
‘‘Asbestos’’ is the generic term for a group of naturally
occurring hydrated magnesium or calcium silicate fibers con-
sisting of ‘‘long, thin, rock crystals formed from old rock by
metamorphism’’ and obtained by mining. H. POLLACK,
MATERIALS SCIENCE AND METALLURGY 417 (3d ed. 1981); 4
L. GORDY & R. GRAY, ATTORNEYS’ TEXTBOOK OF MEDI-
CINE { 134A.30 (3d ed. 1988). Because its long fibers can be
dissolved, bonded, compacted, or spun into fire-, heat- and
chemical-resistant materials, asbestos is easily manufactured
into automobile linings, aircraft air ducts, fireproof gloves
and clothing, insulating board, fireproof cloth, shingles, tiles,
siding and pipe covering. H. POLLACK, supra, at 417. Under
pressure, it may be molded with cement to produce asbesios
board, or combined with sodium silicate to make thin paper
sheets, useful to protect pipes, gaskets, and electrical wiring
from fire or heat. Id. at 417-18. It may be bound with rubber
to package chemicals, or with clay to insulate against high
voltage. Id. at 418. Since the nineteenth century asbestos has
also been widely used to insulate boilers, turbines, ovens,
kilns, and other high-temperature equipment. P. BRODEUR,
4 Wenote, of course, notwithstanding any dispute about the constitu-
tionality of D.C. Law 6-202 as retroactively applied, there appears to be no
constitutional defect in its prospective application. Thus it is unlikely that the
issue we decline to decide here will arise, respecting this law, in any future
case.
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7a
OUTRAGEOUS MISCONDUCT: THE ASBESTOS INDUSTRY ON
TRIAL 11 (1985).
Because of its protective qualities and its versatility, asbes-
tos has long been in wide use in a variety of settings. Conse-
quently, large numbers of people have lived with, worked
with, and been exposed to environments containing, asbestos.
It has been incorporated into manufactured products such as
protective clothing, containers and heavy equipment, and it
has been used extensively as a fire-retardant in building con-
struction. H. POLLACK, supra, at 417-18; L. GorDY & R.
GRAY, supra, 44 134A.30, 134A.31. In efforts to prevent
tragedies, builders have used asbestos in public facilities
housing large numbers of workers, residents, visitors and
other occupants, such as schools, hospitals, offices, and
large-scale housing. See P. BRODEUR, supra, at 324. Further,
hundreds of thousands of workers in the mining and manu-
facturing industries have worked directly with raw asbestos
and asbestos products, exposing themselves unwittingly to
extra-ordinary health hazards. See generally id.; see L.
WHITE, HUMAN DEBRIS: THE INJURED WORKER IN AMER-
ICA 15 (1983); W. HAMMER, OCCUPATIONAL SAFETY MAN-
AGEMENT AND ENGINEERING 406 (3d ed. 1985).
The nature of these hazards has long been known. Greek
and Roman chroniclers observed a sickness of the lungs in
slaves who wove asbestos fabric. P. BRODEUR, supra, at 10.
Modern knowledge of asbestos-related diseases dates back at
least to the turn of the century, when Dr. H. Montague Mur-
ray, a British physician, discovered, in the autopsy of an
asbestos textile worker, that the patient had suffered from
severe pulmonary fibrosis, a degenerative disease of the lung
tissue, and linked that condition to asbestos spicules found in
the patient’s lungs. Jd. at 11. Since then, an increasing flow
of medical literature has documented the incidence of lung
diseases associated with exposure to asbestos.’ Asbestos is
5 See, e.g., Selikoff, Bader, Bader, Churg & Hammond, Asbestosis
and Neoplosia, 42 AM. J. MED. 487 (1967); Dreessen, A Study of Asbestosis
8a
highly friable, and upon disintegration, its particles float
freely in the air, dusting skin and garments, and thus come to
be handled and inhaled. Penetration of the skin can cause
‘‘asbestos warts.’””’ 4 L. GORDY & R. GRAY, supra,
{ 1344.33. Much more serious diseases result from inhala-
tion, including cancer of the lungs, bronchi, stomach and
intestines; mesothelioma, a cancer of the chest wall (pleural
mesothelioma) or abdominal cavity (peritoneal mesothe-
lioma); and asbestosis, a fatally degenerative disease of the
lung tissue involving heavy internal scarring.® Jd., | 134A.34.
Asbestos exposure is known to increase the risk of lung can-
cer five-fold, and in combination with heavy smoking, can
multiply that risk 87 times. Jd., | 134A.34 (3). Studies have
shown that 40% to 53% of insulation and shipyard workers
with substantial exposure to asbestos have died of asbestos-
related diseases. See L. WHITE, supra, at 15. In a seminal
study, the incidence of asbestosis in workers ten years after
their first exposure was 10.4%; twenty years after, 44.1%;
and forty years after, 94.2%. Selikoff, Churg & Hammond,
in the Asbestos Textile Industry, PUB. HEALTH BULL. No. 241 (U.S. Pub.
Health Serv. 1938) Lanza, Asbestosis, 106 J.A.M.A. 368 (1936) Ellman,
Pneumoconiosis, 14 BRIT. J. RADIOL. 361 (1934); Cooke, Pulmonary Asbes-
tosis, 2 BRIT. MED. J. 1024 (1927); Cooke, Fibrosis of the Lungs Due to the
Inhalation of Asbestos Dust, 2 Brit. MED. J.147 (1924).
6 Sufferers of mesothelioma first experience pain at the site of the
lesion, and may later develop a cough, calcification in the lungs, clubbing of
the feet, increased girth, diminished appetite, anorexia, fluid retention in the
abdominal cavity, thickening of the chest wall, and other symptoms. /d.,
4 134A.34 (2). Mesotheliomas only begin to appear fifteen or twenty years
after the patient’s first exposure to asbestos, are seen in greatest profusion
ten years later, and are typically fatal Within no more than two years of diag-
nosis. Jd. 4
Asbestosis, a noncarcinomatous disease, is nevertheless fatal. Symptoms
usually do not begin to appear until some fifteen years after exposure, when
the patient begins to experience difficulty breathing after light exertion. /d.,
§ 134A.34 (1). As the disease advances, the sufferer develops heart enlarge-
ment, anorexia, clubbing of the fingers, reduced lung elasticity and vital
capacity, hyperventilation, and degeneration of the bronchi, among other
symptoms. Id.; W. HAMMER, supra, at 406. Eventually, any physical exer-
tion becomes ‘‘painful and exhausting.’’ See L. WHITE, supra, at 46.
re i li IRA us i he
9a
The Occurence of Asbestosis Among Industrial Workers, 132
ANN. NEW YORK ACAD. SCI. 139, 147 (1965).
It is impossible to appreciate fully the social costs of these
diseases without approaching their most distinctive feature:
asbestosis, mesotheliomas and other asbestos-related cancers
can result from relatively minimal exposure in a variety of
environments, and do not begin to appear until long after the
exposure itself occurs.
It has been found that persons who have been subjected
to otherwise comparatively minor exposures can be
affected. Workers employed for only a few days at
plants where asbestos is used or even handled, although
they did not process it, have been afflicted. Workers
have inadvertently carried asbestos on their clothing to
their families at home where members have sickened and
died.
W. HAMMER, supra, at 406. ‘‘In the mind of the public, this
is the most worrying and unsettling fact—have I already been
exposed to a chemical that will kill me in 10 years time? The
scientific community has no answer to this emotive ques-
tion.’” H. CRONE, CHEMICALS AND SOCIETY: A GUIDE TO
THE CHEMICAL AGE 169 (1986).
This impact has also been felt by industry and government.
Litigation by those afflicted with asbestos-related diseases
reached a watershed with the first major tort covery, Borel
v. Fibreboard Paper Products Corp., 493 F.2d 1076 (Sth Cir.
1973), and has already prompted the largest manufacturer,
the Johns-Manville Corporation, to seek Chapter 11 bank-
ruptcy protection from an estimated 50,000 tort claimants
seeking more than $2 billion. Jn re Johns-Manville Corp., 26
Bankr. 420 (S.D.N.Y. 1983); see generally Comment, The
Manville Bankruptcy: Treating Mass Tort Claims in Chapter
11 Proceedings, 96 HARV. L. REV. 1121 (1983). Massive liti-
gation has proceeded in many forums. The government has
responded by designating asbestos a hazardous air pollutant’
7 See 40C.F.R. § 61.01(a) (1988); 36 Fed. Reg. 5931 (1971).
10a
and enacting extensive consumer product, occupational, and
environmental regulations.*®
It is evident that environmental contamination by asbestos
poses a pervasive and lethal threat to public safety.
B. Facts and Posture of this Litigation
The District of Columbia initiated this suit on December
14, 1984, for damages resulting from the presence or sus-
pected presence of eaten liga ie materials in 2407
properties on the master list of' District-owned buildings.
Having already expended some $ 4,401,793 on building
inspection, the District reported in September 1986 that
asbestos or asbestos-containing materials had been found in
17 of 20 public libraries and 171 of 188 public schools. More-
over, the District had contracted for further inspections
which were planned or in progress at the 29 buildings of the
District of Columbia General Hospital, 1181 buildings admin-
istered by the Department of Public Housing and Community
Services, and 855 buildings administered by the Department
of Public Works. Other structures affected included those
belonging to the Fire Department and the Department of
Corrections.
At the time the complaint was filed, the extent of the con-
tamination was still not fully known. In an inspection of visi-
ble surfaces, five public schools were suspected of asbestos
8 See 16 C.F.R. § 1145.4 (1988) (placing consumer patching com-
pounds containing respirable free-form asbestos within regulatory scope of
Consumer Product Safety Act); 16 C.F.R. § 1145.5 (1988) (placing emberiz-
ing materials containing respirable free-form asbestos within scope of Con-
sumer Product Safety Act); 16 C.F.R. §§ 1304.1-1304.5 (1988) (banning
consumer patching compounds containing respirable free-form asbestos) 29
C.F.R. § 1916.1001 (1988) (establishing occupational safety standards relat-
ing to exposure to asbestos and other toxic substances); 29 C.F.R.
§ 1910.1101 (1988) (establishing interim standards regarding occupational
exposure to asbestos until effective date of 29 C.F.R. § 1910.1001) 40 C.F.R.
§§ 61.140-61.156 (1988) (establishing national emission standards for asbes-
tos); 40 C.F.R. §§ 427.10-427.116 (1988) (limiting asbestos effluence from
production of asbestos products), 40 C.F.R. §§ 763.91, 763.99 & App. B
(1988) (providing for removal of asbestos-containing materials from
schools).
a
WF Emer tel ant ae ld
lla
contamination as early as 1977, and were cleaned up or
otherwise made safe at the District’s expense by December
1980. Techniques ranged from actual removal to encasing or
covering up building components incorporating asbestos-
containing materials. More discoveries ensued; asbestos was
found in particularly dangerous places, such as ventilation
ducts, air conditioning systems, and exposed surfaces. The
District has compiled a limited record of asbestos inspection,
abatement and removal. It has used its own funds and those
appropriated by Congress to survey buildings and has
appointed a special task force to accomplish the undertaking.
It has used existing agencies, such as the Department of Envi-
ronmental Services and the Public Schools Division of Safety
and Security, to carry the task forward. Finally, as it has
become aware that the scope of the problem is larger than its
own instrumentalities can handle, it has contracted with pri-
vate firms to conduct comprehensive environmental testing.
However, limited public resources have made the prompt,
comprehensive investigation and cleanup of the District’s
buildings impracticable. Building records reportedly fill 855
boxes containing 2500 pages apiece. Moreover, these records
do not always reflect repairs, alterations, equipment replace-
ments, Or maintenance performed since construction. The
mere survey of paperwork was expected to exceed a year in
duration.
In the trial court, appellees contended that the District of
Columbia long knew or should have known of the hazards
underlying the litigation, and had even expended resources to
remedy them. They argued that the statute of limitations
barred any claim that the District failed to pursue within
three years of discovering the hazard. Further, they con-
tended that the statute of repose, barring any action to
recover damages for injuries that occurred more than ten
years after an improvement to real property and resulted
from the defective or unsafe condition of the improvement,
considered together with the three-year statute of limitations
from the date a cause of action accrues, barred any claim
resulting from improvements substantially completed before
December 14, 1971—exactly thirteen years before the suit was
12a
filed. Accordingly, appellees jointly moved for orders of par-
tial summary judgment as to claims allegedly barred by the
statutes of limitations and repose.’ The trial court granted
these motions in part. It held that the statute of limitations
and statute of repose applied to the District of Columbia
‘‘notwithstanding the suit’s obvious public interest.’’ District
of Columbia v. Owens-Corning Fiberglas Corp., 115 D.
Wash. L. Rptr. 1905, 1911 (Sept. 11, 1987). The effect of its
orders was to eliminate some 1958 buildings from the scope
of this litigation, better than 80% of the District’s claims.
The District’s application for allowance of an interlocutory
appeal under D.C. Code § 11-721(d) (1981) was granted by
this court.
II. THE DISTRICT’S CLAIM OF IMMUNITY FROM THE
STATUTES OF LIMITATIONS AND REPOSE
A. Introduction
Unlike many other asbestos and toxic tort suits, the claims
on appeal were not brought by an injured individual claimant
or class, but by a government instrumentality seeking dam-
ages for the cost of preventing injury to others. This raises
the distinct issue, not usually addressed in toxic tort cases, of
a government’s legitimate role in protecting the public, and
the propriety of characterizing government spending on its
own property as either a public or a private function. Here,
however, it also raises the more immediate question whether
the District government, because or in spite of its unique
legal status, is entitled to a privilege accorded state govern-
ments but not ordinary litigants: immunity from the passage
of time.
The District asserts that it enjoys sovereign immunity from
the statute of limitations and statute of repose under a
common-law principle called nullum tempus occurrit regi
9 Appellees also moved for and obtained summary judgment on a
claim for breach of warranty. The order granting summary judgment on the
breach of warranty claim has not been appealed.
13a
(‘‘no time runs against the sovereign’’). This doctrine has
sometimes been invoked to defend the propriety of actions
commenced by a state after a statute of limitations would
ordinarily have run.’° The District of Columbia, however, has
never been admitted to the Union as a state. The District is,
of course, a distinct jurisdiction and a governmental entity.
For relevant purposes, it has been variously compared to or
described as a state, territory, or municipality, and sometimes
it has simply been called ‘‘unique.’’'' Our question, there-
fore, is whether the government of the District is entitled to
immunity in any of these capacities. We eschew deciding
broader questions about the District’s status because, follow-
ing other jurisdictions, we are satisfied that it is entitled to
limited immunity in its municipal capacity. This immunity
encompasses the claims now on appeal. We therefore reach
only the existence of the immunity and its applicability to the
institutions bringing suit.
B. The Doctrine of Nullum Tempus and Sovereign
Immunity
It is well settled that sovereigns enjoy a common-law
immunity from the operation of statutes of limitations and
repose. See Guaranty Trust Co. v. United States, 304 US.
196, 132 (1938). Like immunity from suit, the sovereign
10 See, e.g., Twin City Fire Ins. Co. v. Bell, 232 Kan. 813, 658 P.2d
1038 (1983); Todd v. State, 474 So.2d 430 (La. 1985); Washington Suburban
Sanitary Common vy. Pride Homes, Inc., 291 Md. $37, 435 A.2d 796 (1981);
Port Auth. of N.Y. & N.J. v. Bosco, 193 N.J. Super. 696, 475 A.2d 676
(1984); State v. Tidmore, 674 P.2d 14 (Okla. 1983); Comm’r v. Rockland
Constr. Co., 498 Pa. 531, 448 A.2d 1047 (1982); Waller v. Sanchez, 618
S.W.2d 407 (Tex. Civ. App. 1981).
11 See Palmore v. United States, 411 U.S. 389, 395-96 (1973) (District
is a state for diversity purposes and its courts are treated as state courts, but
its laws are not state laws); Kawananakoa v. Polyblank, 20S U.S. 349,353
(1907) (status of District comparable to that of a territory); Metropolitan
R.R. Co. v. District of Columbia, 132 U.S. 1, 9 (1889) (District is ‘‘a sepa-
rate political community,’’ a municipality, and a state only in a qualified,
non-constitutional sense); Firemen’s Ins. Co. of Washington, D.C. v. Wash-
ington, 157 U.S. App. D.C. 320, 325, 483 F.2d 1323, 1328 (1973) (District is
‘a unique entity,’’ ‘‘more akin to a state than to a municipality’).
l4a
exemption from the running of time originated as a royal
privilege, id., and perhaps survived the Revolution more by
force of habit or precedent than by reason. See United States
v. Lee, 106 U.S. 196, 207 (1882);'2 3 K. Davis, ADMINISTRA-
TIVE LAW TREATISE § 25.01, at 436-37 (1958). Nevertheless,
it was long and creditably argued, at least regarding sovereign
immunity from suit, that the law could not be invoked
against the lawgiver, and consequently, the privilege contin-
ued in the states. Kawananakoa, supra note 11, 205 U.S. at
353 (Holmes, J.).'? Ultimately, it seems, the lone explanation
of historical prerogative was unsatisfactory, perhaps because,
in arbitrary fashion, it seemed to give the government a right
that was withheld from the people. Especially as the legisla-
tures and courts began limiting the scope of sovereign immu-
nity from suit,“ a more plausible justification for the parallel
doctrine of nullum tempus seemed necessary if immunity
from the effect of time was to continue. Therefore the
Supreme Court explained in Guaranty Trust, supra, 304 U.S.
at 132, that the rule expresses a legitimate public policy of
preserving ‘‘public rights, revenues, and property from injury
or loss, by the negligence of public officers. And although
this is sometimes called a prerogative right, it is in fact noth-
ing more than a reservation, or exception, introduced for the
public benefit, and equally applicable to all governments.”’
Id. (quoting United States v. Hour, 26 Fed. Cas. 329, 330
(C.C.D.Mass. 1821) (No. 15,373)). Thus, the policy of pro-
tecting the lawgiver was reunited with more democratic prin-
ciples, for it was recognized that the people, as sovereign, are
12. The Lee Court observed that although sovereign immunity had
“repeatedly been asserted here, the principle [had] never been discussed or
the reasons for it given, but it [had] always been treated as an established
doctrine.’’ Jd.
13. The Kawananakoa Court said, ‘‘[T]he answer has been public prop-
erty since before the days of Hobbes. . . . [T]here can be no legal right as
against the authority (hat makes the law on which the right depends.’’ Jd.
14. = See, e.g., Federal Tort Claims Act, ch. 753, 60 Stat. 812 (1946) (cod-
ified as amended at 28 U.S.C. §§ 129i, 1346, 1402, 2110, 2411-12, 2671-80
(1982 & Supp. IV 1986)); Gray v. Bell, 229 U.S. App. D.C. 176, 712 F.2d 490
(1983).
15a
entitled to immunity from government functionaries’ lax
prosecution of public rights. Id.’ The inherent limitation of
this doctrine, of course, is that the rights protected must be
of a public nature, and not merely the private or proprietary
interests of particular institutions. See District of Columbia
v. Weiss, 263 A.2d 638, 639 (D.C. 1970); Stonewall Con-
struction Co. v. McLaughlin, 151 A.2d 535, 536 (D.C. 1959).
There is substantial authority for the application of the
nullum tempus doctrine to actions brought by state govern-
ment authorities. See supra note 10. The existence of the doc-
trine is not, and cannot be, in issue. Rather, the applicability
of the doctrine to municipalities, and to the District of
Columbia in particular, are debated in this case. The dispute
boils down to a perceived conflict between the Supreme
Court’s disposition in Metropolitan Railroad, supra note 11,
132 U.S. at 22, and our own holdings in Weiss, supra, and
Stonewall Construction, supra. In Metropolitan Railroad the
District of Columbia sued a private company, which was
under congressional charter to provide local transit service in
the District and maintain the pavement adjacent to its track-
beds, for damages in the amount the District had expended
to repair pavements defendant had failed to maintain. 132
U.S. at 2. The Court held the District’s suit barred by the
statute of limitations, reasoning that the District was ‘‘a
municipal body merely,’’ Jd. at 3, having a right to sue and
be sued according to the ordinary rules governing suits
between private parties. Jd. at 9. The Court further held that
the sovereign power of the District was lodged in the federal
government, not the District corporation. Jd. Significantly,
however, the Court reserved judgment as to whether a munic-
ipality could be time-barred from asserting a right where the
alleged offense infringed on the sovereign power itself, and
where the municipality had acquired a nght in the interest
protected by that sovereign power. Jd. at 11. The Court
explained:
15 As the Supreme Court explained in Guaranty Trust, ‘‘Regardless of
the form of government and independently of the royal prerogative once
thought sufficient to justify it, the rule is supportable now because its benefit
and advantage extend to every citizen. . . .”’ 304 U.S. at 132.
l6a
What may be the rule in regard to purprestures [wrong-
ful enclosures of public spaces by private parties] and
public nuisances, by encroachments on the highways and
other public places, it is not necessary to determine.
They are generally offenses against the sovereign power
itself, and, as such, no length of time can protect them.
Where the right of property in such places is vested in
the municipality, an assertion of that right may or may
not be subject to the law of limitations. We express no
opinion on that point, since it may be affected by con-
siderations which are not involved in the present case.
Id. Thus, the Court intimated that the right asserted in Met-
ropolitan Railroad was not inherently sovereign, and that the
District, being a municipality, lacked intrinsic sovereignty.
However, it left open the question whether the District might
be protected by mullum tempus when it did acquire a right to
protect an intrinsically sovereign interest or when exercising
any right which is peculiarly that of a sovereign. As discussed
further below, we conclude that the immunities asserted by
the District in this case are distinct from those asserted in
Metropolitan Railroad in that they are not claimed as sover-
eign or quasi-sovereign privileges belonging intrinsically to
the District government, but rather, solely in connection with
public functions delegated to it to be performed in the pos-
ture of a municipality.
Facially, our decisions in Weiss and Stonewall Construc-
tion appear to contradict the Supreme Court’s holding in
Metropolitan Railroad. In Weiss, supra, 263 A.2d at 639-40,
an action the District brought to compel appellee to pay for
services at a public hospital, we held that the District could
not be time-barred from asserting a public right. Similarly, in
Stonewall Construction, supra, 151 A.2d at 536, an action
brought by the District of Columbia Unemployment Com-
pensation Board to recover unpaid compulsory unemploy-
ment contributions, we held that the Board’s action was not
barred by the statute of limitations because it asserted a pub-
lic right. Appellees argue that Metropolitan Railroad renders
Weiss invalid, and, citing dictum in Ward v. District of
17a
Columbia, 494 A.2d 666, 668 n.1 (D.C. 1985), that Stonewall
Construction is inapposite because in it ‘‘the sovereignty of
Congress—not that of the District of Columbia—blocked
application of the statute.’’ Jd. The latter argument begs the
question. All authority exercised by the District government
is derived from congressional mandate.'® The issue is there-
fore not whether the relevant power belongs to the District or
to Congress, but whether a municipality may wield a congres-
sionally mandated power subject to the protections ordinarily
accorded the wielder of that power. This is the crux of the
question that the Supreme Court left open in Metropolitan
Railroad. It is in this legal context that we must examine
whether the exercise of a particular power is subject to time-
bars or exempt from them.
We conclude that in initiating law suits like the one before
us, the District enjoys municipal immunity from the running
of time. To this day, the District has legally organized as a
municipal corporation. D.C. Code § J]-102 (1987 Repl.).
There is, of course, a significant distinction between legisla-
tive and municipal powers. The authority that the Constitu-
tion grants Corgress over the District is unlike any other
Article I power, however, in that it necessarily includes state
or municipal functions.'’ An objective reading of the Home
Rule Act demonstrates that Congress has delegated at least
these municipal functions, as well as significant legislative
authority, to the District." This delegation includes the
16 See U.S. Const., Art. I, § 8, cl. 17; District of Columbia Self-
Government and Governmental Reorganization Act (‘‘Home Rule Act’’),
Pub. L. No. 93-198, 97 Stat. 774 (1973) (codified as amended in scattered
sections of Titles 2, §, 29, 31 & 40 U.S.C. (1982 & Supp. IV 1986); D.C.
Code §§ 1-201- 1-299.7 (1987 Repl.)).
17 See Firemen’s Ins. Co., supra note 11, 157 U.S. App. D.C. at 324-
25, 483 F.2d at 1327-28; Note, Federal and Local Jurisdiction in the District
of Columbia, 92 YALE L. J. 292, 297-300 (1982).
18 See Firemen’s Ins. Co., supra note 11, 187 U.S. App. D.C. at 325,
483 F.2d at 1328 (‘‘When Congress delegates its police power to the local
government, that entity’s powers become as broad as those of Congress, lim-
ited only by the Constitution or specific Congressional enactment.’’).
18a
authority to perform public functions, such as providing for
public health and safety.'® Nevertheless, there is no need for
us to decide that the District has all the sovereignty of a state
to conclude that it enjoys the protection of the mullum tern-
pus doctrine. There is considerable authority in other juris-
dictions that when a municipality performs a public function,
it enjoys legal immunity from the running of time.” We
19 Appellees do not contend that the delegation of power embodied in
the Home Rule Act was unconstitutional, nor could they. ‘‘[T]here is no con-
stitutional barrier to the delegation by Congress to the District of Columbia
of full legislative power, subject of course to constitutional limitations to
which all lawmaking is subservient and subject also to the power of Congress
at any time to revise, alter, or revoke the authority granted."’ District of
Columbia v. John R. Thompson Co., 346 U.S. 100, 109 (1953); see also Fire-
men’s Ins. Co., supra note 11, 157 U.S. App. D.C. at 325, 483 F.2d at 1328.
20 = See, e.g., City of Bisbee v. Cochise County, 52 Ariz. 1, 78 P.2d 982,
985 (1938); Alcorn v. Arkansas State Hosp., 263 Ark. 665, , 367
S.W.2d 737, 741 (1963) Noble v. Merchants Nat'l Realty Corp., 248 Cal.
App. 2d 48, 56 Cal. Rptr. 253 (1967); Berkeley Metro. Dist. v. Poland, 705
P.2d 1004, 1007 (Colo. App. 1985); City of Shelbyville v. Shelbyville Resto-
rium, Inc., 96 Ill. 2d 457, , 451 N.E.2d 874, 876-77, 71 Ill. Dec. $25,
(1983); Chicago & Northwest Ry. v. City of Osage, 176 N.W.2d 788,
791 (lowa 1970); Unified School Dist. No. 400, Butler County v. Celotex
Corp., 6 Kan. App. 2d 346, , 629 P.2d 196, 203 (1981); Kiuckhuhn v.
Ivy Hill Ass’n, Inc., 55 Md. App. 41, , 461 A.2d 16, 21, aff'd, 298 Md.
695, 472 A.2d 77 (1983) (discussing adverse possession in context of general
rules regarding limitation of actions); State v. Scientific Coating Co., 228
N.J. Super. 320, , 549 A.2d 874, 876 (1988); Bd. of Educ., School
Dist. 16 v. Standhardt, 80 N.M. 543, , 458 P.2d 795, 801 (1969) (treat-
ing subdivisions that perform public functions as ‘‘arm of the state’’); Jncor-
porated Village of Island Park v. Island Park-Long Beach, Inc., 274 A.D.
930, , 83 N.Y.S.2d 542, 543, rearg. and appeal denied, 274 A.D. 994,
85 N.Y.S.2d 510 (1948) (dictum); City of Reidsville v. Burton, 267 N.C. 206,
, 152 S.E.2d 147, 151 (1967); Rowan County Bd. of Educ. v. United
States Gypsum Co., 87 N.C. App. 108, , 359 S.E.2d 814, 819, review
denied, 321 N.C. 298, 362 S.E.2d 782 (1987); City of Kettering v. Burger, 4
Ohio App. 3d 254, ___, 448 N.E.2d 458, 466, 4 O.B.R. 471, (1982);
State v. Shelton, 727 P.2d 103, 105 (Okla. 1986); Chizek v. Port of Newport,
252 Or. $70, , 450 P.2d 749, 753 (1969); Frailey Township School Dist.
v. Schuylkill Mining Co., 361 Pa. 557, ___., 64 A.2d 788, 790 (1949); Bry-
ant v. Mission Mun. Hosp., 575 S.W.2d 136, 137 (Tex. Civ. App. 1978); Be/-
levue School Dist. No. 405 v. Brazier Constr. Co., 103 Wash. 2d 111,
691 P.2d 178, 181-82 (1984).
19a
acknowledge that contrary authority exists,*’ but it is clear
that a circumscribed municipal immunity in the performance
of public functions is today the rule in an overwhelming
majority of states, and we recognize its authority here.~ Our
opinions in Weiss and Stonewall Construction merely apply
the majority rule.
Moreover, today’s holding is consistent with Metropolitan
Railroad because the Supreme Court there expressly declined
to hold that no municipal activities are insulated from the
Statute of limitations by the doctrine of mullum tempus. 132
U.S. at 12. The Court did note that a municipal corporation
generally has ‘‘the right to sue and be sued, and [is] subject
to the ordinary rules that govern the law of procedure
between private persons.’’ Id. at 9. Yet today a host of juris-
dictions hold that municipalities enjoy a limited immunity not
shared by private parties. Do they contradict a holding of the
Supreme Court?
The answer lies in the question: they are not contradicting
the Supreme Court. The issue in Metropolitan Railroad was
not, as it is here, the existence of municipal immunity, but
rather, whether the District of Columbia might invoke sover-
eign immunity. The answer was that it could not do so,
21 State v. Mudd, 273 Ala. 579, , 143 So. 2d 171, 174 (1962);
Mayor & Council of Wilmington v. Dukes, $2 Del. 110, , 187 A.2d
789, 794-95 (1960); Ideal Farms Drainage Dist. v. Certain Lands, 154 Fla.
554, , 19 So. 2d 234, 235 (1944); City of New Bedford v. Lloyd Invest-
ment Associates, Inc., 363 Mass. 112, , 292 N.E.2d 688, 691 (1973);
City of Coon Rapids v. Suburban Eng’z, Inc., 283 Minn. 151, ___., 167
N.W.2d 493, 495 (1969); Jn re Ernst’s Guardianship, 158 Neb. 15, , 62
N.W.2d 110, 111 (1954); Lakeside Township v. Northwestern Trust Co., 74
N.D. 396, ____, 22 N. W.2d $91, $92 (1946); Hatcher v. State, 125 Tex. 84,
, 81 S.W.2d 499, $00 (Tex. Crim. App. 1935).
It should be noted, however, that of these eight authorities, two involved
municipal immunities specifically abrogated by statutes, Jdea/ Farms, supra,
154 Fla. at , 19 So. 2d at 235; New Bedford, supra, 363 Mass. at
___.__., 292 N.E.2d at 691, and one denied the municipality an immunity that
it did not even recognize to be available to the state. Coon Rapids, supra, 283
Minn. at , 167 N.W.2d at 495.
22 The doctrine is well settled enough to be stated as the ‘‘general rule’’
in the textbooks. See 17 E. MCQUILLIN, MUNICIPAL CORPORATIONS § 49.06
(3d ed. 1972 & 1983 Cum. Supp.).
20a
because the District was not a state, and Congress had then
narrowly restricted the rights and powers that the District was
authorized to exercise. By ‘‘sovereign immunity,’’ of course,
we refer to the immunity a political community or institution
enjoys by right of its political status, and not merely by vir-
tue of the legal function it performs at a given time.”’ While
sovereign immunity may be waived by permission or by stat-
ute, Glidden Co. v. Zdanok, 370 U.S. 530, 563-64 (1962)
(immunity from tort liability), it continues to exist as a privi-
lege the sovereign may reclaim. Maricopa County v. Valley
National Bank, 318 U.S. 357, 362 (1943) Gmmunity from lia-
bility to suit); Pass v. McGrath, 89 U.S. App. D.C. 371, 372,
192 F.2d 415, 416 (1951) (immunity from liability to suit). By
contrast, the derivative immunity a municipality enjoys
inheres in it only when it performs a sovereign function, such
as the vindication of a public right, and then only with refer-
ence to the function performed.“ We do not reach the issue
of sovereignty here; we merely hold that in its municipal
capacity, the District enjoys a common-law immunity under
the doctrine of nullum tempus.”
23 += This distinction has sometimes been expressed as a dichotomy
between ‘‘sovereign immunity,’’ as we use it here, and ‘‘governmental immu-
nity,’’ which is enjoyed by municipal subdivisions ‘‘only when engaged in
‘governmental’ as distinguished from ‘proprietary’ functions.’’ Myers v.
Genesee County Auditor, 375 Mich. 1, , 133 N.W.2d 190, 191 (1965);
see also Ramsey v. Prince George’s County, 18 Md. App. 385, n.2,
308 A.2d 217, 219 n.2 (1973) (citing Myers); Ross v. Consumers Power Co.,
420 Mich. 567, , 363 N.W.2d 641, 650 (1984) (citing Myers); 57 Am.
Jur. 2d Municipal, County, School and State Tort Liability § 3 (1988).
24 See authorities cited supra note 23.
25 Accordingly, we do not reach the effect of changes in the District’s
political status on the extent to which it is protected by sovereign privileges
beyond those attached to the particular powers it may perform. Compare
Metropolitan Railroad, supra, 132 U.S. at 7 (‘‘Legislative powers have now
ceased, and the municipal government is confined to mere administration.’’),
with Home Rule Act § 102 (‘‘the intent of Congress is to delegate certain leg-
islative powers to the District of Columbia . . . [and] grant to the inhabit-
ants of the District of Columbia powers of local self-government.’’). In dicta
in Ward, supra, 464 A.2d at 668, we took a skeptical view of the impact such
:
)
)
)
2la
Underlying our recognition of a doctrine widely applied
elsewhere is a functional rather than a formalistic reading of
the immunity issue. We have already noted that, like immu-
nity from suit, immunity from statutes of limitations and
repose is the artifact of a royal prerogative. Nevertheless,
courts did not vest this right in the successor governments as
a mere legal inheritance, but adopted a more substantive jus-
tification consistent with the public good: defense of the pub-
lic interest and public fisc from the negligence of the
government’s agents. The administration of the public inter-
est and the public fisc in the District of Columbia has been
vested by act of Congress in the District of Columbia govern-
ment. That government has been charged, among other
things, with seeing to the health and safety of the citizens in
its jurisdiction. See D.C. Code § 1-315 (1987 Repl.) (autho-
rizing specific police regulations); D.C. Code § 1-319 (1987
Repl.) (authorizing general regulations ‘‘for the protection of
lives, limbs, health, comfort and quiet of all persons and the
protection of all property’’). Under such circumstances, to
hold that legal immunity resides in the actor rather than the
act would divorce the principle from its purpose. It would
expose the citizenry of the District, unlike the citizens of any
other United States jurisdiction, to hazard without redress.
Indeed, it would render nugatory the very functions Congress
intended to strengthen by vesting them in a local government.
C. The Legal Relationship Between the District and
Congress
Appellees attempt to persuade us that because Congress is
sovereign in the District, the government of the District of
Columbia is devoid of the authority necessary to enjoy
municipal immunity. They contend by analogy to the rela-
tionship between a staie and its municipal subdivisions that
changes might have. We note that under the Home Rule Act, the District
government continues to exist as a ‘“‘body corporate for municipal purposes,
and may. . . sue and be sued. . . and exercise all other powers of a munici-
pal corporation. . . .’” Home Rule Act § 102(a).
22a
Congress is sovereign, and is thus the sole repository of sov-
ereign immunity in the District. We disagree. The abundance
of cases holding that municipal subdivisions enjoy limited
immunities belies this position, and the logic underlying Con-
gress’ delegation of powers renders it completely untenable.
There is general agreement that the Constitution gives Con-
gress plenary power over the District of Columbia.” Thus
there can be no doubt that theoretically, if Congress chose, it
could govern the District directly, without the help of a
municipal government or its agencies. Since Congress is sov-
ereign in the District, it enjoys the usual sovereign immuni-
ties, including the benefit of nullum tempus. In creating a
municipal government, and in ultimately granting it broad
governmental powers, Congress intended, among other
things, to ‘‘relieve [itself] of the burden of legislating upon
essentially local District matters.’’ Home Rule Act, § 102(a)
(Statement of Purposes).
The Home Rule Act explicitly provides that the legisla-
tive power of the District shall extend to all rightful sub-
jects of legislation within the District consistent with the
Constitution of the United States and the provisions of
this Act subject to all the restrictions and limitations
imposed upon the States by the tenth section of the first
article of the Constitution of the United States.
Id., § 302. Thus Congress granted broad, but not exclusive,
legislative powers to the District, analogous to the powers of
26 ‘‘Congress’ power over the District of Columbia encompasses the
full authority of government, and thus, necessarily, the Executive and Judi-
cial powers as well as the Legislative.’ Northern Pipeline Constr. Co. v.
Marathon Pipeline Co., 458 U.S. 50, 76 (1982) (emphasis in original). See
U.S. Const., Art. I, § 8, cl. 17:
The Congress shall have Power. . . [t]o exercise exclusive Legislation
in all Cases whatsoever, over such District (not exceeding ten Miles
square) as may, by Cession of particular States, and the Acceptance of
Congress, become the Seat of the Government of the United States,
and to exercise like Authority over all Places purchased by the Cénsent
of the Legislature of the State in which the Same shall be, for the Erec-
tion of Forts, Magazines, Arsenals, dock-Yards, and other needful
Buildings. .
23a
the states, and directed to the performance of many ‘‘public
functions’’ typically exercised by the government of a state.
The supposition that Congress delegated to the District
government ‘‘all rightful subjects of legislation . . . consis-
tent with the Constitution,’’ and established the foundations
of self-rule, without also granting the District immunity
under the doctrine of nullum tempus, engenders serious logi-
cal difficulties. It involves admitting that, except when Con-
gress explicitly disapproves District legislation, it becomes the
law of the jurisdiction, and that all significant public policy
and public services originate with the agencies and instrumen-
talities of the District, yet only Congress enjoys immunity
from the running of the statutes of limitations and repose. It
suggests that while the District government performs practi-
cally all public functions in this jurisdiction, only Congress,
which rarely participates directly in local affairs, enjoys the
benefit of an immunity designed to protect those public func-
tions. Thus, under this theory, Congress’ immunity is irrele-
vant when the District acts, even if the District performs
functions—as it must—which are within the scope of congres-
sional immunity. The protection is thereby separated from its
purpose, and the public, which is supposed to be the benefi-
ciary of the immunity, is bereft of it. Of course, ‘‘[t]his
would be to overthrow in fact what was established in theory;
. . an absurdity too gross to be insisted on.”’”’
It cannot be argued that Congress intended to remove this
protection or diminish its own power by the mere act of dele-
gating it to the District. Yet this is the inevitable consequence
of a formalistic, rather than functionalistic, reading of the
nullum tempus doctrine. Common sense counsels that the
protection of nullum tempus, if it is to be meaningful, must
follow the function performed, and not reside only in institu-
tions that, as a matter of policy, refrain from exercising the
27 The voice we adopt here is, of course, that of Chief Justice Mar-
shall, speaking in Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803).
24a
functions the doctrine was designed to insulate.“* We there-
fore conclude that the District of Columbia is immune from
the running of the statutes of limitations and repose when it
brings suit seeking to vindicate public rights and involving the
performance of public functions.
III. THE PUBLIC FUNCTION REQUIREMENT
Although we have now concluded that the District enjoys
the immunity it seeks, we emphasize that this immunity is
highly circumscribed. The government enjoys immunity from
the running of time only when it sues to vindicate public
rights. Thus, our task will not be complete until we have
determined whether, with respect to the particular issue on
appeal, the District is suing to vindicate a public or a proprie-
tary right.”
28 Indeed, it can be argued that the congressional delegation of author-
ity to perform public functions automatically includes a delegation of the
privileges and immunities that are part and parcel of that authority. We refer
again to appellees’ citation of our opinion in Ward v. District of Columbia,
supra, 494 A.2d at 668 & n.1. In Ward we questioned our earlier holdings in
Weiss, supra, and Stonewall Construction, supra, which we now specifically
reaffirm. We remarked that Stonewall Construction, in which we found that
the District of Columbia Unemployment Compensation Board enjoyed
immunity from the statute of limitations, involved an exercise of congressio-
nal rather than District sovereignty, since the Board had been created by con-
gressional legislation. Id. (interpreting D.C. Code § 46-304 (1951)). But of
course, every District instrumentality ultimately derives its authority,
through the Home Rule Act or other legislation, from a congressional man-
date. Thus, to the extent that the rule of Stonewall Construction, as inter-
preted by Ward, applied to the Unemployment Compensation Board, it must
also apply to every District instrumentality that performs a delegated public
function.
29 The distinction between public and private functions retains its vital-
ity as applied to the nullum tempus doctrine despite the ruling of the United
States Court of Appeals for the District of Columbia Circuit in Spencer v.
Gen. Hosp. of the District of Columbia, 138 U.S. App. D.C. 48, 50, 425
F.2d 479, 481 (1969), that it lacks continuing vitality in tort immunity cases.
In the context of a tort action against a public hospital, the Spencer court
observed that governmental and propriety roles are interrelated and some-
25a
This question is by no means an easy one. The line
between rights that accrue to the public’s benefit and those
that are ultimately proprietary to the government is a fine
one, especially since any financial loss to the government is
ultimately a loss to the public fisc.
In Weiss, supra, where we held that the District’s suit to
recover fees owed to a public hospital was not barred by the
Statute of limitations, we said:
The District of Columbia is seeking to replenish its trea-
sury of money expended by a public instrumentality in
the exercise of a public function. Recovery of the funds,
which will benefit the public as a whole when applied to
the continued operation of Glenn Dale Hospital, should
not be made contingent on the diligence of public ser-
vants.
263 A.2d at 640. This passage emphasizes the expenditure of
the disputed monies by a public instrumentality, its applica-
tion to a public function, and the policy against allowing the
laxity of public servants to erect a bar to suit. We stress,
however, that while all monies the District sues upon affect
the public fisc, it does not follow that every time the District
sues for money it performs a public function. While the line
is hard to draw, it can fairly be stated that something more is
required than a naked financial interest; thus in Weiss we
spoke of replenishing the treasury of funds earmarked for the
performance of a particular public function. Where the Dis-
trict acquires a right of action directly related to its duty to
perform # service to the public, or to vindicate an over-
explained, ‘‘between the operat#nr of hospitals, on the one hand, and
schools, on the other, that offer mingfu!l bases for differentiation between
tort liability for acts of the kind alleged in those cases and in the one before
us.”’ Id. The Spencer court found that the distinction often impeded suits
even when it was in the public interest for them to proceed, and therefore dis-
carded the distinction. However, the decision was by its terms applicable to
tort cases brought against a municipal corporation, and its rationale in no
way suggests that the distinction should be discarded where, as in cases
involving the principle of nullum tempus, it proiects the public interest.
times difficult to distinguish 4 je perceive no distinctions,’’ the court
ss)
26a
whelmingly public interest or right, a suit to recover money
damages to enable the District to perform that service is pub-
lic rather than proprietary. Of course, there may be other
considerations, unique to each case, which must guide future
courts in determining whether the public function test is met.
The facts of the claim on appeal satisfy us that the District
is suing to vindicate a public right. Only the most narrow
reading could interpret the District’s claims as purely proprie-
tary. The hazard presented, as we have seen, is an enormous
one. More than 2400 public buildings are affected. Many of
these buildings, such as schools, libraries, hospitals, and gov-
ernment offices, are for the general use of the public, and
hundreds or even thousands of people pass through each of
them every day. Any child who grows up in the District and
attends a public school is massively exposed; anyone who
works for the District government or frequents District
offices suffers similar exposure. Many thousands of residents
in District public housing literally live with this threat. The
men and women who serve the jurisdiction in the police and
fire departments are exposed daily. We have seen that the
diseases asbestos engenders are numerous, painful and
deadly; the percentage of those exposed who eventually fall
victim to an asbestos-related illness is prohibitively high.
Unquestionably, the public at large has a profound interest in
the elimination of a danger so extreme and widespread.
At the same time, where other factors point to the public
nature of the claim, it becomes irrelevant that the District is
suing to replenish its own funds. Naturally, a suit of this
kind involves the government’s interest in seeing to it that the
treasury suffers no loss as the result of expenditures to
remove a public danger. However, it is impossible to extricate
this proprietary interest completely from the larger public
function; every time a government sues for money to vindi-
cate a public interest, it is in some sense its ‘‘own’’ money
that the government seeks to replenish. At oral argument,
appellees attempted to draw a comparison between the inter-
est the government asserts here and that of a large landlord,
or the owner of an office building, whose property is simi-
larly contaminated. They argued that the former case, like
27a
the latter, presented a purely proprietary interest. However,
apart from differences in the scale of the threat, it is obvious
that a private owner never performs a ‘‘governmental’’ func-
tion, even if her problems are comparable to those of the
government, simply because she is not a government herself.
No matter how many tenants she may have, her duties to
them are private ones because they arise from private con-
tractual obligations and she is a private person; but the gov-
ernment performs a public duty when it protects the health
and safety of ihe public at large. Here the government is
suing for the cost of removing a public danger resulting from
the alleged tortious activities of appellees; the damages recov-
ered from such a suit would therefore be used in the per-
formance of a public function. Under these circumstances,
the District’s financial interest is secondary.
Appellees have cited a number of cases from other jurisdic-
tions which, they assert, prove that the interest that the Dis-
trict asserts here is only a proprietary one. They observe that
in Trustees of Bergen Community College v. J.P. Fyfe, Inc.,
188 N.J. Super. 288, , 457 A.2d 83, 88 (1982), aff'd,
192 N.J. Super. 433, 471 A.2d 38 (1983), certification denied,
96 N.J. 308, 475 A.2d 598 (1984), the court held, ‘‘[W]here
plaintiff (community college] sues because of alleged’’ defects
in building roofs, ‘‘it is clear that it stands on no different
footing from any owner of a building.’’ However, Fyfe dealt
only with structural roofing defects, and there is no indica-
tion that those defects posed a danger to public safety or wel-
fare. In the context of mere repairs, therefore, the college’s
suit was essentially indistinguishable from a private action of
the same nature. Further, in Fyfe, the plaintiff was a county
college legally distinct from the state, county, or municipal-
ity, and subject by statute to the rules governing suits by pri-
vate parties. By contrast, the instant case involves a suit by
the government of the entire District, which is, moreover, a
distinct political community and not the political subdivision
of a state. While the District bears the relationship of a
municipality to the United States Government, there is no
larger population, distinct from the populations of the other
states, of which it is a subset. Accordingly, the municipal sta-
28a
tus of this jurisdiction does not vitiate the impact of the
alleged tort on the ‘‘general public’’ rather than some sub-
group within the whole jurisdiction.
Appellees also argue from a series of federal cases in Ten-
nessee that the removal of asbestos from schools is not a
public function. The Sixth Circuit in Anderson County Board
of Education v. National Gypsum Co., 821 F.2d 1230, 1233
(6th Cir. 1987), applying Tennessee law, held that a suit by a
local board of education to remove asbestos from public
school buildings was not brought to further a public func-
tion, since it was one ‘‘in which only local citizens [were]
interested, as distinguished from [those] in which all the peo-
ple of the state are interested,’’ id., and it did not affect the
finances of the state as opposed to the school board.
Although we do not necessarily adopt the test used by the
Sixth Circuit in applying Tennessee law, we note that the Dis-
trict’s claim would survive it, since all citizens of the District
are affected by the asbestos contamination involved, and the
District’s finances, rather than those of a subdepartment such
as a local school board, are at stake.
In Kelley v. Metropolitan County Board of Education, 615
F. Supp. 1139, 1152 (M.D. Tenn. 1985), rev'd on other
grounds, 836 F.2d 986 (6th Cir. 1987), the court stated, in
dicta, that while the provision of public education is a gov-
ernmental function, the maintenance of school buildings is
merely proprietary. Kelley, however, noted this principle only
by way of example, since the case involved school desegrega-
tion, not the abatement of a public health hazard. Moreover,
in sO commenting, the Kelley court relied on a magistrate’s
opinion in County of Johnson, Tennessee v. United States
Gypsum Co., 580 F. Supp. 284 (E.D. Tenn. 1984), which was
soon reversed in relevant part in County of Johnson, Tennes-
see v. United States Gypsum Co., 664 F. Supp. 1127 (E.D.
Tenn. 1985) (because operation of public schools is a public
function, statute of limitations is inapplicable to county
action for removal of asbestos in schools).
Finally, appellees cite West Haven School District v.
Owens-Corning Fiberglas Corp., No. H-85-1056, slip op. (D.
Conn. Aug. 10, 1988), wherein the court held that the statute
ht ae ——_ —<—-_°* - EY a ee
29a
of limitations applied to a local school district its action to
recover asbestos abatement costs. The West Haven court, like
the court in Anderson County, held that the action involved
a loca] rather than a statewide interest. As we have noted
above, this issue is either inapplicable or operates in favor of
the District, since the hazard potentially affects practically all
of its residents. However, the West Haven court, citing
Gauvin v. City of New Haven, 187 Conn. 180, , 445
A.2d 1, 3 (1982), also held that ‘‘government acts’’ (as
opposed to proprietary acts) are not only performed for
direct public benefit, but are of a supervisory or discretion-
ary, rather than ministerial, nature. Thus, acts ‘‘performed in
a prescribed manner without the exercise of judgment or dis-
cretion,’’ West Haven, supra, slip op. at 7-8, are unprotected
by municipal immunity. However, we could find no other
authority for the application of the ‘‘discretionary function’’
requirement to immunity from a statute of limitations.
Gauvin, like all other cases that have applied the discretion-
ary function rule, interpreted sovereign immunity from tort
liability, and not immunity under nullum tempus. See, e.z.,
Spencer, supra, 138 U.S. App. D.C. at 51, 425 F.2d at 482.
This distinction is important, since sovereign immunity from
tort liability was designed to protect the discretionary acts of
governmental officers from the chilling effects of potential
liability, while preserving the public’s access to justice in
merely ministerial cases.*° No similar policy operates where
the government itself brings suit to vindicate public rights. As
the District has correctly stated in its reply brief:
30 See City of Shelbyville, supra note 20, 96 IIl.2d at
N.E.2d at 877, 71 Ill. Dec. at ;
The purpose of the two doctrines, as we understand them, is different:
the former [nullum tempus] is designed to preserve public rights when
the government is slow to assert them on the public’s behalf, while the
latter [immunity from tort liability] is used to promote the autonomy
of public bodies as entities by insulating them from liability for their
actions. They are separate actions, and we do not interpret [the aboli-
tion of the latter] as requiring abolition of governmental immunity
from statutes of limitation.
, 451
alah be bs
30a
When the government sues to recover from wrongdoers,
it serves a public purpose . . . . When, however, gov-
ernment itself has been the wrongdoer, entirely different
considerations apply. Courts are naturally reluctant to
construe governmental functions broadly when to do so
means that the government escapes liability for its mis-
deeds and its victims remain uncompensated.
Reply Brief for Appellant at 21. Where the mullum tempus
immunity exists to protect the public from the negligence of
public agents or officers, see Guaranty Trust, supra, 304 U.S.
at 132, we do not think it is relevant whether the function
that agent or officer failed to perform was ministerial or dis-
cretionary.”!
Finally, we are unconvinced by appellees’ analogy to other
District of Columbia ‘‘public function’’ cases, which all con-
strue the public or proprietary nature of duties underlying
tort actions brought against the District. All of these cases
involve lesser functions which, while associated with duties
performed by the District to secure public health or safety,
are of a lesser scope and would not affect public health or
safety as a whole. See Scull v. District of Columbia, 102 U.S.
App. D.C. 104, 105, 250 F.2d 767, 768 (1957), cert. denied,
356 U.S. 920 (1958) (installation of water mains not a gov-
ernmental function for tort liability purposes); District of
Columbia v. Green, 96 U.S. App. D.C. 20, 21, 223 F.2d 312,
313 (1955) (operating a public market a proprietary function
for tort liability purposes); Smith v. District of Columbia, 89
U.S. App. D.C. 7, 10, 189 F.2d 671, 674 (1951) (declining to
31 Moreover, appellees argue, quoting Shifrin v. Wilson, 412 F. Supp.
1282, 1307 (D.D.C. 1976), that conduct may be deemed discretionary only if
liability for the activity would ‘‘pose threats to the quality and efficiency of
government in the District.’’ Thus, even if the discretionary function test
were applicable, under the test proposed by appellees, we would hold the Dis-
trict, intended action in this case to be discretionary, since, contrary to appel-
lees’ assertions, the want of immunity would seriously jeopardize the public
fisc, thereby undermining the District’s efforts to remove the hazard as well
as to perform other public functions. Parenthetically, we also note that Shi/-
rin construed ‘‘discretionary functions”’ in inquiring whether there was sov-
ereign immunity from tort liability, and not from the effect of a statute of
limitations.
3la
hold District immune from tort liability by governmental
function analysis for failing to remove snow, but absolving
District of liability under ordinary negligence standard);
Thomas v. Potomac Electric Power Co., 266 F. Supp. 687,
692 (D.D.C. 1967) (operating a swimming pool a proprietary
function). In each, a narrow interest was at stake, involving
the safety of individuals or small numbers of people for tort
liability purposes; none involved a hazard with an impact as
broad as that presented by the widespread asbestos contami-
nation of public facilities. We therefore reject the inference
that, because we have held certain duties involving the
removal of minor individual hazards to be proprietary, any
response to a threat to public safety, no matter how large the
threat or for what purpose the response is considered, must
also be considered proprietary. Rather, as the foregoing anal-
ysis makes clear, each case must be reviewed on its own mer-
its, taking into account the scope and severity of the
problem, the cross-section of the population affected, and
any other considerations that may clarify the extent to which
the public at large is interested in the outcome.
Considering these factors, we must conclude that appellant
has articulated a public interest worthy of the municipal] nul-
lum tempo protection.
IV. CONCLUSION
Because we find that the District of Columbia enjoys a lim-
ited municipal immunity from the effects of the statutes of
limitations and repose, and further, that it is a governmental
function of the District to remove and abate the widespread
contamination of public buildings with asbestos, which poses
a substantial threat to public health, we conclude that the
District may bring an action for damages resulting from that
contamination even after the statutes of limitations and
repose would ordinarily have run. Accordingly, we conclude
that the trial court improperly granted summary judgment
with respect to the claims on appeal. The order granting sum-
32a
mary judgment is therefore reversed, and the case remanded
for proceedings consistent with this opinion.
Reversed and remanded.
33a
No. 87-1254
CA14128-84
>.
DISTRICT OF COLUMBIA,
Appellant,
—
OWENS-CORNING FIBERGLASS CORPORATION, ET AL.,
Appellees.
Before:
Rogers, Chief Judge;
Newman, Ferren, *Belson, *Terry, Steadman, Schwelb,
and Farrell, Associate Judges;
and *Mack, Senior Judge.
.
ORDER
On consideration of appellees’ petition for rehearing or
rehearing en banc, the response thereto, the motion for leave
to file reply memorandum in support of petition, the lodged
reply memorandum, and appellant’s supplemental statement
to petition, it is
ORDERED that the motion for leave to file is granted and
the Clerk is directed to file the lodged reply memorandum. It
is
FURTHER ORDERED by the merits division* that the peti-
tion for rehearing is granted to the extent that a new footnote
5 is inserted at page 7 of the slip opinion, making reference
to Title A of the text following the word ‘‘Consequences,’’ to
read:
34a
We stress that the reference to the sources herein and
any reliance on the conclusions drawn thereby, are
advanced in support of our holding that the District has
brought this lawsuit in the objectively good faith belief
that it is necessary to vindicate a public right and not to
express or intimate any opinion as to the hazard posed
by the particular asbestos products at issue in this litiga-
tion. Obviously, the latter question is to be resolved at
trial uninfluenced by anything that this court has stated
in addressing the preliminary issue of the timeliness of
the suit.
It appearing that no judge of this court has called for a
vote on the petition for rehearing en banc, it is
FURTHER ORDERED that the petition for rehearing en banc
is denied.
PER CURIAM
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
C.A. No. 14128-84
Civil I—Judge Wolf
ea
DISTRICT OF COLUMBIA
Plaintiff
—_—V—
OWENS-CORNING FIBERGLASS CorpP. et al.
Defendants
-
MEMORANDUM ORDER ON STATUTE
OF LIMITATIONS
The court has before it the Motion of Defendants for par-
tial Summary Judgment on the Basis of the Statute of limita-
tions, the plaintiff’s opposition thereto, and defendants’
reply. Oral argument was heard in open court on December
12, 1986. This court makes the following rulings of law.
The statute of limitations, D.C. Code § 12-301 (1981),
applies to the District of Columbia, i.e., the District is not
immune from the operation of the statute. Ward v. District
of Columbia, 494 A.2d 666 (D.C. 1985); Metropolitan Rail-
road Co. v. District of Columbia, 132 U.S. 1 (1889). There is
no just reason to delay decision on this question because of
pending legislation (D.C. Act 6-261, signed by the Mayor
Jan. 8, 1987) doing away with the statute of limitations for
and by the plaintiff in this very case. The effect of any such
legislation must be dealt with when and if it becomes law
after the required 30-day period of Congressional review.
For purposes of the statute of limitations most actions of
this type must be brought within three years after the cause
of action accrues. D.C. Code § 12-301 (3), (7), (8) (1981).
Generally a cause of action is said to accrue at the time
36a
injury occurs. An injury to the District of Columbia occurred
(or occurs) in this case when the District (1) knew of presence
of asbestos in a particular public building and (2) had suffi-
cient knowledge that asbestos was an intrinsically hazardous
material.
At least two scenarios can be envisioned for what the court
finds are these separate and distinct injury occurrences: (A)
Asbestos could have been installed in a building built, reno-
vated, or leased (with attendant modifications) by the District
Government when D.C. officials were aware at the time that
asbestos was being installed. (B) D.C. officials may not have
known that asbestos was installed when it was installed.
Building specifications may have called only for ‘‘insula-
tion,’’ or a particular kind of ceiling tile, and its asbestos
content was unknown—indeed may still be unknown.
These two scenarios require separate discussion for pur-
poses of the instant motion.
(A)
Under scenario (A) the first element of accrual of a cause
of action is satisfied and the primary relevant question
remaining for statute of limitations purposes is the second
element: When did District officials come to know that asbes-
tos was intrinsically hazardous? Once that knowledge was
extant the statute started running. ‘‘[T]he relationship
between the fact of injury [known presence of hazardous
asbestos] and the alleged tortious conduct [sale of installation
of the asbestos by a defendant or defendants]’’ is not
‘‘obscure.’’ Bussineau v. President and Directors of George-
town College, 518 A.2d 423, 425 (D.C. 1986). This is there-
fore not a situation justifying broad application of the
‘*discovery rule,’’ however expansively it may be interpreted.
In the court’s view, as a matter of undisputed fact and as a
matter of law, the District had actual notice that asbestos was
hazardous well before December 14, 1981, the date three
years before this suit was filed. The District claims a dispute
of fact because it does not know the degree of each hazard
where asbestos is present and the most appropriate remedy
for each such hazard. This argument only expresses uncer-
tainty about the District’s damages. Moreover, once the
intrinsic hazard is kuown, the District has reason to know of
a particular hazard or abatement need (e.g., immediately haz-
ardous friability), even if the optimum abatement method is
open to question. The District also claims a dispute of fact
because its counsel do not yet know the identity of the defen-
dant manufacturers or distributors of the hazardous asbestos
in each location. However, the District admits it may never
know that information and seeks to hold defendants jointly
and severally liable on market share or enterprise liability the-
ories. The District’s alleged disputes of fact, therefore, would
not save it from a statute of limitations bar under this sce-
nario. See generally Kelton v. District of Columbia, 413 A.2d
919 (D.C. 1980); Hobson v. Wilson, 237 U.S. App. D.C.
219, 250-54, 737 F.2d 1, 32-36 (1984), cert. denied 105 S.Ct.
1843 (1985); District of Columbia Armory Board v. Volkert,
131 U.S. App. D.C. 74, 77, 402 F.2d 215, 218 (1968).
The court rules that the time for plaintiff to bring its
action was tolled for some defendants herein by the class
action suit in Pennsylvania, Jn re Asbestos School Litigation,
104 F.R.D. 422 (E.D. Pa. 1984), 789 F.2d 996 (3rd Cir.
1986), cert. denied sub nom. Celotex Corp. v. School District
of Lancaster, 55 U.S.L.W. 3235 (U.S. Oct. 6, 1986) (No. 86-
140). Crown Cork & Seal Co. v. Parker, 462 U.S. 345 (1983).
Therefore plaintiff’s claims for known installation of asbestos
may relate back to January 17, 1980 at the earliesi—three
years before that suit was filed. The court finds, however,
that plaintiff was on actual notice of asbestos hazard by that
time as well. Various defendants would be affected directly
and with different dates in this ruling, as indicated in defen-
dants’ Reply p. 33, footnote.
Plaintiff’s further assertion that it could not have filed suit
earlier because market share and enterprise liability had not
been established is only an admission that plaintiff was not as
resourceful as other litigants. It has no relevance to avoid-
ance of the statute of limitations. Similarly, plaintiff's allega-
tion of fraudulent concealment is of no avail when the court
finds, as its does in this case, that the concealment was no
38a
longer successful some time before January 17, 1980. Hobson
v. Wilson, supra, 237 U.S. App. D.C. at 253, 737 F.2d at 35.
The court realizes several additional facets of this scenario
of known installation of asbestos at the time of installation:
(i) It may be a very small proportion of plaintiff’s claims. (ii)
It may apply to some of the asbestos in a particular building
but not tg other asbestos in the same building. What are the
parameters of ‘‘reason to know’’ in this and similar situa-
tions? (iii) Whose ‘‘knowledge’’ of asbestos installation will
suffice? A District of Columbia employee who was a janitor
in a remodeled school building at a time asbestos was
installed? Probably not. A contracting official? Probably yes.
(iv) For any knowing (by the District of Columbia) installa-
tion of asbestos subsequent to January 17, 1980, a defense of
assumption of risk and/or contributory negligence would
undoubtedly prevail in light of the court’s ruling above that
there is no material dispute as to sufficient knowledge (by
high enough D.C. officials) of the hazard of asbestos subse-
quent to that time. (v) This ruling does not require the court
to determine a specific time when the District’s knowledge of
the hazardous nature of asbestos came into being. It is suffi-
cient for the court simply to rule that, as a matter of law and
undisputed fact on the basis of the pleading submitted, that
knowledge did exist before January 17, 1980 (or before such
later date as may be appropriate pursuant to the court’s toll-
ing ruling above). (vi) Discovery must be permitted to deter-
mine if scenario (A) applies to any of the public buildings in
issue in this case.
(B)
Under scenario (B) neither element of accrual of a District
cause of action can be assumed satisfied. Two dates are rele-
vant for each piece of property in question: (1) the date the
District learned that asbestos was present in a building, and
(2) the date the District came to ‘‘know’’ that asbestos was
hazardous. Whichever date is later for a particular piece of
property governs the commencement of the running of the
statute of limitations for that property. If that latter of the
39a
two relevant dates precedes January 17, 1980 (the earliest
date for tolling purposes), the claim for that building is
barred. Since the court has ruled that the District did have
knowledge of the hazard of asbestos prior to January 17,
1980, it remains for discovery to identify buildings where the
District has learned or is learning of the presence of asbestos
since that date. Any claims for building for which the District
knew there was asbestos present before January 17, 1980 are
barred. In circumstances of the mass tort litigation character-
istic of asbestos cases, the court doubts that the District can
be considered to have ‘‘reason to know’’ of the presence of
asbestos in every one of its multitude of public buildings by a
date certain. Moreover, there may be instances where the Dis-
trict learned (or learns) of the presence of asbestos in one
portion of a building but not another. Once again, what are
the parameters of ‘‘reason to know’”’ in such situations? Dis-
covery must be permitted with respect to the issues under sce-
nario (B).
* = * - 7
Some subsidiary rulings are ripe as a result of the court’s
attention to the statute of limitations issue. Plaintiff’s restitu-
tion claim (Count 7 of its complaint) is merely a type of
relief claimed for conduct of defendants alleged in earlier
counts. Moreover, even if restitution is deemed a separate
cause of action, the court finds that a three-year statute of
limitations applies. D.C. Code § 12-301 (8) (1981). Accord-
ingly, the court finds that claim will be time-barred for the
same reasons and to the same extent as may become appro-
priate after discovery for plaintiff’s other causes of action.
Count 6 of the plaintiff's complaint seeks a declaratory
judgment that plaintiff will be entitled to indemnity from
defendants for any claims brought against it seeking damages
for any disease or injury resulting from exposure to asbestos
in any of its buildings. No such claims are alleged to have yet
been made. A cause of action for indemnity does not arise
until such damages are incurred. Aetna Casualty & Surety
Co. v. Windsor, 353 A.2d 684, 686 (D.C. 1976). Plaintiff
would therefore seem to be adequately protected and may
40a
implead defendants, or any combination of them, each time a
suit for damages is filed against plaintiff. Since that may or
may not occur, plaintiff’s indemnity claim is premature and
speculative, no prejudice results to plaintiff, and Count 6 will
therefore be considered dismissed unless a claim is made
against the District during the course of this litigation for
which indemnity may be appropriate.
It is therefore, this 3d day of February 1987
ORDERED:
1. That defendant’s Motion for Partial Summary Judg-
ment on the Basis of the Statute of Limitations is hereby
GRANTED IN PART and DENIED IN PART.
2. That to the extent appropriate, this Memorandum Order
shall constitute an order under Civil Rule 56 (d) to guide dis-
covery and the future course of this litigation. Counsel may
suggest discovery plans or modifications accordingly.
/s/
PETER H. WOLF
Judge
4la
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
C.A. No. 14128-84
Civil I—Judge Wolf
> -
DISTRICT OF COLUMBIA
Plaintiff
—V.—
OWENS-CORNING FIBERGLASS CorpP. ef ai.
Defendants
os
MEMORANDUM ORDER ON STATUTE OF REPOSE
The court has before it the defendants’ Joint Motion for
Summary Judgment and for a Declaratory Order on the Basis
of the Statute of Repose, the plaintiff’s opposition thereto,
and defendants’ reply. Oral argument was heard in open
court on December 12, 1986. The court makes the following
rulings of law.
For the same reasons set forth in the court’s Memorandum
Order on Statute of Limitations, issued this same date, the
court rules that (1) the statute of repose, D.C. Code § 12-310
(1981), applies to the District of Columbia, (2) there is no
just reason to delay decision because of pending legislation,
(3) tolling applies to the three years under D.C. Code § 12-
301 within which suit must be brought for an injury within
the ten-year period of D.C. Code § 12-310, and (4) plaintiffs
restitution claim (Count 7 of the complaint) shall be time-
barred to the same extent as plaintiff’s other claims under the
rulings today.
Because of the above tolling ruling, the earliest substantial
completion date for a building for which plaintiff may make
claims against defendants is January 17, 1970, or such later
42a
date up to December 14, 1971 as may affect some defendants
not initially a part of the Pennsylvania class action suit speci-
fied at page 33, footnote, defendants’ reply on the statute of
limitations issue.
The court rules that the plain language of D.C. Code § 12-
310, and its application in President and Directors of George-
town College v. Madden, 660 F.2d 91 (4th Cir. 1981), do not
prevent the applicability of that statute to buildings substan-
tially completed prior to its 1972 enactment. Similarly, the
plain language of the statute precludes defendants’ alleged
fraudulent concealment from somehow negating the ‘‘any
action’’ bar of the statute. Cf. J.H. Westerman Co. v. Fire-
men’s Fund Ins. Co., 499 A.2d 116 (D.C. 1985).
The court will permit further discovery in this case before
it rules, as requested by defendants, that plaintiff’s claims for
four named school buildings are barred at this time. There
may be factual issues as to dates of ‘‘substantial completion”’
of various buildings, and there may be mixed issues of law
and fact as to what constitutes an ‘‘improvement.’’ However,
the relevant information would appear to be solely in the
possession of plaintiff, and it will clearly have to provide
more substantial oppositional evidence than it has so far with
respect to the four schools at issue, and other buildings, if it
expects to escape summary judgment after appropriate dis-
covery expires. Cf. Celotex Corp. v. Catrett, 106 S.Ct. 2548
(1986). The court also does not hesitate to say it will be
guided in any questions about ‘‘improvements’’ by Wester-
man, supra, 499 A.2d at 119.
The court realizes that its accompanying Memorandum
Order on Statute of Limitations will probably have a larger
effect on plaintiff's overall claims in this case than the rulings
in this order. For many, if not most, of plaintiff's individual
building claims, therefore, the rulings in this order will be rel-
evant only as alternative holdings for purposes of appeal,
interlocutory or otherwise. Cf. D.C. Code § 11-721 (d);
Plunkett v. Gill, 287 A.2d 543, 545 n. 9 (D.C. 1972). How-
ever, the statute of repose (§ 12-310) and the statute of limi- |
tations (§ 12-301) interrelate, Madden, supra, 505 F. Supp.
557, 572-73 (D. Md. 1980), aff’d in part, rev’d in part, 660
43a
F.2d 91 (4th Cir. 1981), so these two orders must be read in
conjunction with each other. The court can envision a case
where, under this court’s orders, the statute of repose would
bar a claim of plaintiff that the statute of limitations would
not: a building whose construction was completed before
January 17, 1970, in which asbestos was installed as part of
those improvements to the real property unknown to plain-
tiff, the presence of which only became known to plaintiff
after December 14, 1981. Plaintiff’s knowledge of the intrin-
sically hazardous nature of asbestos is irrelevant to analysis
under the statute of repose.
Accordingly, it is this 3d day of February 1987 ORDERED:
1. That defendant’s Joint Motion for Summary Judgment
and for a Declaratory Order on the Basis of the Statute of
REpose is hereby GRANTED IN PART and DENIED IN PART.
2. That to the extent appropriate, this Memorandum Order
shall constitute an order under Civil Rule 56 (d) to guide dis-
covery and the future course of this litigation. Counsel may
suggest discovery plans or modifications accordingly.
/s/
PETER H. WOLF
Judge
44a
SUPERIOR COURT OF THE DISTRICT OF COLUMBIA
CIVIL DIVISION
C.A. No. 14128-84
Civil I—Judge Wolf
>
DISTRICT OF COLUMBIA
Plaintiff
—V— ,
OWENS-CORNING FIBERGLASS CorpP. ef ai.
Defendants
<i
OPINION
The court has before it the Motion of Plaintiff for Recon-
sideration of the Court’s February 3, 1987 Orders, defen-
dants’ memorandum in opposition thereto, and plaintiff's
reply. Oral argument was held on June 26, 1987. The exis-
tence of this opinion obviously shows the court has granted
reconsideration of its orders, but upon that reconsideration ©
the prior orders will be reaffirmed in all respects for the rea-
sons which follow.
Plaintiff’s motion was thoroughly anticipated because of a
law passed by the District of Columbia City Council since
this litigation commenced and intended specifically to apply
to this litigation. Some factual background is required. Tiais
law suit was filed December 14, 1984. It sought $200 million
compensatory and $200 million punitive damages against 37
asbestos product manufacturers and suppliers for the cost of
making safe for public use some 2400 D.C. government
buildings and schools in which asbestos products may have
been utilized during construction or improvement. Twenty-
seven defendants remain.
45a
On June 23, 1986 several defendants filed a joint motion
for partial summary judgment on the basis of the statute of
limitations, D.C. Code § 12-301 (1981). Twenty-three days
later the Corporation Counsel’s Office forwarded to the City
Council a bill, No. 6-510, proposing amendment of that stat-
ute and the statute of repose, D.C. Code § 12-310. In sum-
mary, that bill made any statute of limitations or repose
inapplicable ‘‘to actions brought by the District of Columbia
government.’’ §§ 3(b) and 4. Section 6 provided, ‘‘This act
shall apply to actions pending in a court on July 1, 1986
. . » Of which this case was the only one ‘‘brought by the
District of Columbia government.’’ Plaintiff then filed a
motion for extension of time to reply to defendants’ motion
for summary judgment, suggesting that the court not decide
the motion until the bill became law as anticipated in March
1987 after the required period of Congressional review. At a
status hearing on September 26, 1986, the court indicated it
would proceed to decide the motion withstanding the pending
bill. It ordered briefing by plaintiff District of Columbia.
Defendants thereafter filed a joint motion for Summary
Judgment and for a Declaratory Order on the Basis of the
Statute of Repose. Oral argument was held on both motions
on December 12, 1986, and the court decided them by memo-
randum orders issued February 3, 1987. The District now
seeks reconsideration of those orders in light of the fact that
on February 28, 1987 the bill did become D.C.
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