# Petition for Writ of Certiorari — Owens-Corning Fiberglas Corp. v. District of Columbia > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1626%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1990 - **Citation:** 498 U.S. 880 ## Text 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 pe es re ns ok bien bb xbucavussndueseeces es 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, % 3 H 3 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 Sl bial dle Hees Bek Via sSigbeiedly bid oh does at AaPiniciie : : 5 : L A ¢ % : j i] j : 3 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 \ sad ee eae 7 . ee he ae ED pee __ alias ace Ser saat Pa _ - eae a 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. ee ee ee ee ee ee ee a SN ee eee ey 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385020_1626%3A1. Public record. Not legal advice.