UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WASHINGTON METRORAIL SAFETY
COMMISSION,
Petitioner,
v. Miscellaneous Action No. 24 - 144 (LLA)
WASHINGTON METROPOLITAN
AREA TRANSIT AUTHORITY,
Respondent.
MEMORANDUM OPINION
Petitioner Washington Metrorail Safety Commission (the “WMSC” or “Commission”)
seeks an order enforcing a subpoena it issued to Respondent Washington Metropolitan Transit
Authority (“WMATA”). ECF No. 1. After the court referred the case for random assignment to
a magistrate judge, ECF No. 8, Magistrate Judge Zia M. Faruqui issued an order in December 2025
granting the Commission’s petition to enforce the subpoena, ECF No. 9. The parties and the court
agree that the Magistrate Judge’s order should be construed as a report and recommendation
(“R&R”). WMATA has filed objections to the R&R, ECF No. 11, which are fully briefed, ECF
Nos. 11, 15, 16. For the reasons discussed below, the court will overrule WMATA’s objections.
I. BACKGROUND
Neither party objects to the facts set forth in the background section of the
Magistrate Judge’s order, so the court will adopt those findings. See Interstate Fire & Cas. Co. v.
Wash. Hosp. Ctr. Corp., 917 F. Supp. 2d 87, 89 (D.D.C. 2013) (construing the magistrate judge’s memorandum opinion as an R&R and adopting the factual findings in the opinion’s background
section). The court further summarizes the relevant facts below.
A. The Commission’s Authority Over WMATA
The District of Columbia, Maryland, and Virginia created WMATA to “plan, develop,
finance, and . . . operate[]” a comprehensive mass transit system for the Washington, D.C.
metropolitan area. Pub. L. No. 89-774, § 2, 80 Stat. 1324, 1325 (1967). Today, WMATA is
comprised of Metrorail, a rail-operated public transportation system; Metrobus, a fixed-route bus
service; MetroAccess, a door-to-door shared-ride “paratransit service[]”; and the Metro Transit
Police Department. ECF No. 6, at 1-2.
In the Moving Ahead for Progress in the 21st Century Act of 2012, Pub. L. No. 112-141,
126 Stat. 405 (the “Act”), Congress directed public transit systems like WMATA, which receive
certain federal funds, to each establish a “comprehensive agency safety plan” containing safety
targets and requirements, including “strategies to minimize the exposure of the public, personnel,
and property to hazards and unsafe conditions, and consistent with guidelines of the Centers for
Disease Control and Prevention or a State health authority, minimize exposure to infectious
diseases,” 49 U.S.C. § 5329(d)(1)(D); see id. § 5329(d)(1)(A)-(H). The Act also requires
funding-eligible states—or in WMATA’s case, the District, Maryland, and Virginia,
collectively—to create a “State safety oversight program” that “assumes responsibility for
overseeing rail fixed guideway public transportation safety,” 49 U.S.C. § 5329(e)(3)(A); “adopts
2
and enforces Federal and relevant State laws on rail fixed guideway public transportation safety,”
id. § 5329(e)(3)(B); and “establishes a State safety oversight agency,” id. § 5329(e)(3)(C).1
The District, Maryland, and Virginia subsequently entered into the Washington Metrorail
Safety Commission Interstate Compact, Pub. L. No. 115-54, 131 Stat. 1093 (2017) (the
“Compact”), which designates the Commission as the “safety oversight agency” for WMATA’s
Metrorail system,2 ECF No. 1 ¶¶ 10-11; ECF No. 6, at 4, 17; see State Safety Oversight Contacts,
Fed. Transit Admin.3 The scope of the Commission’s oversight power is governed by
Section 5329 and the Compact. The Commission has “exclusive safety oversight authority and
responsibility over the WMATA Rail System pursuant to federal law.” § 3(a), 131 Stat. at 1095.
Put differently, the Commission is vested with “investigative, inspection, and enforcement
authority with respect to the safety of [WMATA’s] rail fixed guideway public transportation
system[]”—that is, Metrorail. 49 U.S.C. § 5329(e)(4)(A)(v).4 Likewise, the Commission is
1
Because WMATA operates in the District, Maryland, and Virginia, all three must “[d]esignate a single entity” to “serve” as the state safety oversight agency. 49 C.F.R. § 674.15(b). 2
Before Congress passed the Act in 2012, the Tri-State Oversight Committee (“TOC”) had authority to “review” and “monitor” WMATA’s “safety program plan.” 49 U.S.C. § 5330(c) (2006); FTA Safety Oversight of the Washington Metropolitan Area Transit Authority (WMATA) Metrorail System, Fed. Transit Admin., https://perma.cc/8Z4J-7M7Q (hereinafter “FTA Safety Oversight”); Tri-State Oversight Committee, Md. Manual Online, https://perma.cc/83SB-3ML8. The TOC then served as WMATA’s oversight safety agency until October 2015, when the U.S. Secretary for Transportation directed the Federal Transit Administration to assume temporary oversight authority over WMATA. FTA Safety Oversight, supra; see 49 U.S.C. § 5329(e)(8) (allowing the Secretary of Transportation to temporarily administer a safety oversight program if the Secretary determines that the program fails to meet certain standards). The Federal Transit Administration later ceded control of Metrorail’s safety oversight to the Commission. ECF No. 6, at 4.
3
Available at https://perma.cc/9Z23-EXPB.
4
A “‘fixed guideway’” is a “public transportation facility” (A) “using and occupying a separate right-of-way for the exclusive use of public transportation”; (B) “using rail”; (C) “using a fixed catenary system”; (D) “for a passenger ferry system”; or (E) “for a bus rapid transit system.” 49 U.S.C. § 5302(8).
3
empowered to “review, approve, oversee, and enforce [WMATA’s] implementation” of the safety
plan as it applies to Metrorail. Id. § 5329(e)(4)(A)(iv); see §§ 3(c), 30(b), 131 Stat. at 1095, 1098.
As WMATA’s safety oversight agency, the Commission must also “audit[], at least once
triennially, the compliance of [WMATA’s] rail fixed guideway transportation system[] . . . with
the . . . agency safety plan.” 49 U.S.C. § 5329(e)(4)(A)(vi); see § 30(e), 131 Stat. at 1098.
In performing its duties, the Commission may “[i]nvestigate hazards, incidents, and
accidents on the WMATA Rail System,” § 3(d), 131 Stat. at 1095, and may “[c]onduct . . .
inspections, investigations, examinations, and testing of WMATA personnel and contractors,
property, equipment, facilities, rolling stock, and operations of the WMATA Rail System,
including, without limitation, electronic information and databases through reasonable means,” id.
§ 31(a), 131 Stat. at 1098. The Compact empowers the Commission to issue subpoenas as part of
its investigations, id., and this court has jurisdiction to hear actions brought by the Commission to
enforce subpoenas issued pursuant to the Compact, id. § 48, 131 Stat. at 1101.
B. The Commission’s Subpoena
In October 2023, WMATA provided the Commission with a report indicating the presence
of lead dust in several cabinets—located in at least one Metrorail station—that were used to store
emergency medical equipment. ECF No. 1 ¶ 17; see ECF No. 1-3, at 20-21. In response, the
Commission added a “specific focus on workplace safety” to its upcoming triennial audit of
WMATA’s “fitness for duty programs.” ECF No. 1 ¶ 19. The parties corresponded over several
months as the Commission asked lead-related follow-up questions and WMATA generally
supplied the requested information. See id.; ECF No. 1-3, at 4-20.
In February 2024, the Commission provided WMATA with written notice of a “safety
audit of WMATA’s fitness for duty and occupational health programs.” ECF No. 1 ¶ 20 (quoting
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ECF No. 1-4, at 1). The notice indicated that the Commission was conducting its safety audit
pursuant to 49 C.F.R. part 674—the federal regulations for state safety oversight pursuant to
Section 5329. ECF No. 1-4, at 1; see, e.g., 49 C.F.R. § 674.31 (requiring state safety oversight
agencies to conduct triennial audits as required by Section 5329(e)(4)(A)(vi)). The fitness for duty
portion of the audit addressed the “mitigation of hazards related to an individual’s physical and
mental condition,” whereas the occupational health inquiry focused on the “mitigation of hazards
related to workplace conditions.” ECF No. 1-4, at 1. The Commission stated that it would
“conduct field observations in or around the WMATA Rail System,” interview relevant
individuals, and review records. Id. The written notice expressly exempted “alternate exit routes,
emergency action plans, and fire prevention plans” from the scope of the occupational health audit
“to prevent confusion regarding regulations set by the federal Occupational Safety and Health
Administration” (“OSHA”). Id. at 2 n.2.
Along with notice of the audit, the Commission sent WMATA a request for twenty-eight
categories of documents and information concerning “employee fitness, occupational health,
training, various bodily and environmental safety programs, drug and alcohol testing, and exposure
to hazardous substances,” ECF No. 1 ¶ 22; see ECF No. 1-5, and requested a response by
March 11, 2024, ECF No. 1 ¶ 23. Days before the deadline to respond, WMATA informed the
Commission that the occupational health portion of the audit exceeded the Commission’s
authority, duplicated existing oversight by other state and federal agencies, and risked subjecting
WMATA to inconsistent regulatory requirements. ECF No. 1-6, at 2-3. WMATA also maintained
that compliance would be overly burdensome. Id. at 2.
In April 2024, the Commission served WMATA with an administrative subpoena
demanding responses to the twenty-eight requests for documents and information. See ECF No. 1
5
¶ 29 (“The Subpoena does not expand the scope of the Initial Request.”); see also ECF No. 1-9.5
WMATA sent the Commission general and request-specific objections to the subpoena, id., and
the Commission responded to WMATA’s concerns, ECF No. 1-10. By June 2024, WMATA had
produced “only a few documents” in response to the subpoena and had “left many requests
unaddressed.” ECF No. 1 ¶ 32. The parties conferred for several months to resolve the
disagreements; as a result, WMATA has now provided “acceptable initial responses to fitness for
duty requests and most drug and alcohol program-related requests,”6 but it “refuse[s] to produce
information in response to the requests regarding workplace health.” Id. ¶ 34. Still outstanding
are requests 2(b), 3, 22, and 24 through 28, and the parts of requests 11, 12, and 23 that concern
occupational health. Id. Those requests concern the following information:
▪ Request 2(b): “All policies and procedures (Metrorail-wide, departmental,
organizational unit level and all documents from policy instructions down to work
instructions) related to . . . [o]ccupational health programs.”
▪ Request 3: “[C]urrent program documents including any governing documents and
procedures (Metrorail-wide, departmental, organizational unit level and all
documents from policy instructions down to work instructions)” for various
programs.7
5
Inexplicably, the parties have not provided the court with a copy of the subpoena at issue, so the court has relied on WMATA’s objections to the subpoena and the Commission’s responses in order to understand the subpoena’s scope. See ECF No. 1-9 (WMATA’s objections); ECF No. 1-10 (the Commission’s responses).
6
The “acceptable” responses covered requests 1, 2(a), 4 through 10, 14 (although not in the Commission’s preferred format), 15 through 21, and parts of requests 11, 12, and 23. ECF No. 1 ¶ 34.
7
This request included documents covering (a) walking-working surfaces like “[l]adder [s]afety, stairways, platforms, manlifts, scaffolding, [and] protection from falling objects”; (b) environmental control, including “ventilation, noise exposure . . . , and nonionizing radiation”; (c) hazardous materials like “compressed gases, petroleum gases, hazardous chemicals, and hazardous waste”; (d) personal protective equipment; (e) general environmental controls, including “safety color codes for marking physical hazards, specifications for accident prevention
(continued on next page)
6
▪ Request 11: “All training requirements related to . . . occupational health
programs.”
▪ Request 12: “All training curricula, trainings, class schedules, and exams related
to . . . occupational health programs.”
▪ Request 22: “All existing data reports/trend data related to dosimetry testing, indoor
air quality, toxic and hazardous substances, [j]ob hazard analyses, PPE usage,
training overdue for health and safety programs, [and] employee safety concerns
for the period January 1, 2021 through December 31, 2023.”
▪ Request 23: “[A]ll . . . occupational health reporting requirements required by the
federal government, the District of Columbia, Maryland, and Virginia.”
▪ Request 24: “All occupational health inspection reports that relate to the WMATA
Rail System from the federal Occupational Safety and Health Administration, [and]
the occupational health agencies from the District of Columbia, Maryland, and
Virginia for the period January 1, 2022 through January 31, 2024.”
▪ Request 25: “All medical monitoring results for welders and other employees who
engage in hot work from January 1, 2021 through December 31, 2023.”
▪ Request 26: “All noise and dosimetry test schedules and results from January 1,
2021 through December 31, 2023”; “[a]ll documents confirming that audible or
hearing tests are undertaken for personnel working in areas above WMATA’s
time-weighted average for noise levels”; and “[a]ll medical monitoring results for
employees exposed to an 8-hour time-weighted average (TWA) noise level of
85 decibels (dBs) or above or per the thresholds in WMATA’s hearing conservation
program.”
▪ Request 27: “All exposure reports for air and surface monitoring regarding specific
substances including without limitation, silica, asbestos, hexavalent chromium,
lead, or any other toxic or hazardous substances from January 1, 2021 through
December 31, 2023.”
and tags, permit-required confined spaces, and control of hazardous energy”; (f) medical and first aid; (g) materials handling and storage like “powered industrial trucks, overhead and gantry cranes, crawler locomotive and truck cranes, and slings”; (h) machinery and machine guarding for “woodworking or metal machinery, abrasive wheel machinery, forging machines, and mechanical power-transmission apparatuses” like “mechanical and hydraulic power presses”; (i) hard and portable powered tools and hand-held equipment guarding; (j) any type of welding; (k) electrical safety, including “wiring design protection, specific purpose equipment and installations, hazardous (classified) locations, third rail safety on the right-of-way, and safety-related work practices”; and (l) various toxic and hazardous substances, including asbestos, carcinogens, benzene, and bloodborne pathogens, among others. ECF No. 1-5 ¶ 3.
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▪ Request 28: “All exposure reports from bloodborne pathogens and associated
medical monitoring results from January 1, 2021 through December 31, 2023.”
ECF No. 1-5 ¶¶ 2(b), 3, 11-12, 22-28 (footnote omitted).
II. PROCEDURAL HISTORY
In October 2024, the Commission filed a petition seeking an order enforcing the subpoena.
ECF No. 1. After briefing, ECF Nos. 1, 6, 7, the court referred the matter to a magistrate judge in
December 2024 for full case management, ECF No. 8. In December 2025, the Magistrate Judge
issued an order granting the petition. ECF No. 9. He concluded that the Compact authorized the
Commission to issue the subpoena because a subpoena targeting WMATA’s occupational safety
and health (“OSH”) practices falls within the Commission’s general authority to investigate
safety-related risks and hazards on WMATA’s Metrorail system. Id. at 3-5. In so concluding, he
rejected WMATA’s argument that only state and federal occupational safety and health agencies
may regulate OSH. Id. at 5-6. Additionally, the Magistrate Judge concluded that WMATA’s
compliance with the subpoena would not pose an undue burden. Id. at 7-9.
As required by 28 U.S.C. § 636(b) and Federal Rule of Civil Procedure 72(b)(2), WMATA
filed timely objections to the Magistrate Judge’s order, ECF No. 11, which are fully briefed, ECF
Nos. 11, 15, 16. Based on the parties’ agreement, ECF Nos. 12, 14, the court has stayed
WMATA’s obligation to respond to the subpoena until the issuance of this opinion, Jan. 8, 2026
Minute Order.
III. LEGAL STANDARD
“Administrative agencies wield broad power to gather information through the issuance of
subpoenas.” Consumer Fin. Prot. Bureau v. Accrediting Council for Indep. Colls. & Schs., 854
F.3d 683, 688 (D.C. Cir. 2017) (quoting Resol. Trust Corp. v. Thornton, 41 F.3d 1539, 1544
8
(D.C. Cir. 1994)); see Fed. Trade Comm’n v. Ken Roberts Co., 276 F.3d 583, 586 (D.C. Cir. 2001)
(noting the “long-standing doctrine that administrative agencies must be given wide latitude in
asserting their power to investigate by subpoena”). The federal courts of appeals have therefore
“consistently deferred to agency determinations of their own investigative authority” and
“generally refused to entertain challenges to agency authority in proceedings to enforce
compulsory process.” Ken Roberts Co., 276 F.3d at 586 (collecting cases). But the “[s]ubpoena
enforcement power is not limitless.” Id. The court plays a “limited” role, id. at 587, to ensure that
(1) “the inquiry is within the authority of the agency” and does not “exceed[] an express statutory
limitation on the agency’s investigative powers”; (2) “the demand is not too indefinite”; and
(3) “the information sought is reasonably relevant,” id. at 586 (internal quotation marks omitted).
On the first question, the D.C. Circuit “[has] held that enforcement of an agency’s investigative
subpoena will be denied only when there is a ‘patent lack of jurisdiction’ in an agency to regulate
or to investigate.” Id. at 587 (quoting Civil Aeronautics Board v. Deutsche Lufthansa
Aktiengesellschaft, 591 F.2d 951, 952 (D.C. Cir. 1979), and collecting cases); see Fed. Trade
Comm’n v. CVS Health Corp., No. 25-MC-3, 2025 WL 3546175, at *2 (D.D.C. Feb. 24, 2025).
In addition to assessing an agency’s authority and the terms of a subpoena, the court must
consider whether an entity’s compliance with the subpoena would be “unduly burdensome.”
Accrediting Council for Indep. Colls. & Schs., 854 F.3d at 689; United States v. Legal Servs. for
N.Y.C., 249 F.3d 1077, 1084 (D.C. Cir. 2001) (explaining that while “concerns over burden are
related to relevance,” the two involve distinct inquiries). For unduly burdensome requests, the
court may “impose reasonable conditions and restrictions with respect to the production of the
subpoenaed material.” Fed. Trade Comm’n v. Texaco, Inc., 555 F.2d 882, 881 (D.C. Cir. 1977).
The subpoenaed party bears the burden of establishing that compliance is unreasonable. Id. at 882.
9
Some burden is “expected” and will be “necessary” to further the “agency’s legitimate inquiry and
the public interest”; accordingly, the burden of proving unreasonableness is “not easily met” where
the “inquiry is pursuant to a lawful purpose and the requested documents are relevant to that
purpose.” Id. Courts in this Circuit have therefore rejected undue-burden arguments even when
“compliance would be extremely costly, labor intensive, and in certain cases, impossible.” CVS
Health Corp., 2025 WL 3546175, at *3 (quoting Fed. Trade Comm’n v. Invention Submission
Corp., No. 89-MC-272, 1991 WL 47104, at *3 (D.D.C. Feb. 14, 1991)); see Texaco, 555 F.2d
at 882 (explaining that courts “have refused to modify investigative subpoenas unless compliance
threatens to unduly disrupt or seriously hinder normal operations of a business”).
IV. DISCUSSION
A. Standard of Review
The parties first address the legal effect of the Magistrate Judge’s order and what standard
of review this court should apply. Unless the parties have consented to proceed before a magistrate
judge for all purposes, a district judge’s review of a magistrate judge’s decision takes one of two
forms. If the issue is “dispositive of a claim,” the magistrate judge must make “proposed findings
of fact” and “enter” an R&R. Fed. R. Civ. P. 72(b)(1); see 28 U.S.C. § 636(b)(1)(B)-(C); see also
Local Civ. R. 72.3. The district court must then “determine de novo any part of the magistrate
judge’s disposition” subject to an objection and “accept, reject, or modify the recommended
disposition; receive further evidence; or return the matter to the magistrate judge with
instructions.” Fed. R. Civ. P. 72(b)(3); see 28 U.S.C. § 636(b)(1)(B)-(C); see also Local Civ.
R. 72.3(c). In contrast, for non-dispositive matters, the magistrate judge “issue[s] a written order
stating the decision,” which the district court, upon objection by a party, may modify or set aside
10
only to the extent that it is “clearly erroneous” or “contrary to law.” Fed. R. Civ. P. 72(a); see
28 U.S.C. § 636(b)(1)(A); see also Local Civ. R. 72.2.
The statute governing the jurisdiction and authority of magistrate judges sets forth several
dispositive matters, including motions to dismiss for failure to state a claim, motions for judgment
on the pleadings, and motions for summary judgment, among others. 28 U.S.C. § 636(b)(1)(A).
A petition to enforce an administrative subpoena is not on that list. See id. While the list “appears
to be exhaustive,” the Supreme Court “has identified some judicial functions as dispositive
notwithstanding” the statute’s failure to expressly include them. Flam v. Flam, 788 F.3d 1043,
1046 (9th Cir. 2015); see, e.g., Gomez v. United States, 490 U.S. 858, 873-74 (1989) (holding that
although Congress “did not identify the selection of a jury as either a ‘dispositive’ matter . . . or a
‘nondispositive’ pretrial matter . . . jury selection is more akin to those precisely defined,
‘dispositive’ matters [that require] de novo review”). Courts employ a “functional approach that
looks to the effect of the motion” to “determine whether it is properly characterized as dispositive
or non-dispositive of a [party’s] claim.” ML-CFC 2007-6 P.R. Props., LLC v. BPP Retail Props.,
LLC, 951 F.3d 41, 47 (1st Cir. 2020) (quoting Flam, 788 F.3d at 1046); see Vogel v. U.S. Off.
Prods. Co., 258 F.3d 509, 515 (6th Cir. 2001) (“The list of dispositive motions contained in
[Section] 636(b)(1)(A) is nonexhaustive, and unlisted motions that are functionally equivalent to
those listed in [Section] 636(b)(1)(A) are also dispositive.”). For example, the Sixth Circuit has
held that motions for default judgment, for sanctions under Federal Rules of Civil Procedure 11
and 37, and to proceed in forma pauperis are all dispositive because they are functionally
equivalent to the motions listed in Section 636(b)(1)(A). Vogel, 258 F.3d at 515 (collecting cases).
Here, neither party consented to referral to a magistrate judge for all purposes, so the
Magistrate Judge lacked authority to issue a binding ruling if the matter was dispositive. See ECF
11
No. 8; CPC Patent Techs. PTY Ltd. v. Apple, Inc., 34 F.4th 801, 807 (9th Cir. 2022) (explaining
that “a magistrate judge may not issue binding rulings on case-dispositive matters without the
parties’ consent”). The issue before the Magistrate Judge here—the Commission’s petition to
enforce the administrative subpoena—was the sole legal claim in the case. See ECF No. 8, at 1;
ECF No. 9, at 1 (noting that the court was considering the Commission’s petition). Yet the
Magistrate Judge granted the petition in full and directed WMATA to produce documents within
thirty days. ECF No. 9, at 1, 10. In doing so, he viewed the petition to enforce as a
“non-dispositive matter” like a motion to compel discovery and subject to this court’s review for
clear error or conclusions that are contrary to law. Id. at 10 n.4 (quoting United States v. All Assets
Held at Bank Julius, No. 04-CV-798, 2016 WL 11609892, at *2 (D.D.C. Jan. 12, 2026)).
The court agrees with the parties that the Magistrate Judge’s order was dispositive and,
pursuant to Section 636(b), Federal Rule of Civil Procedure 72, and Local Civil Rules 72.2
and 72.3, should be construed as an R&R. See ECF No. 11, at 10; ECF No. 15, at 5. Whereas a
motion to compel discovery involves a discrete dispute that is “part of a larger case,” the
Commission’s petition—which does not arise out of a preexisting enforcement proceeding before
the court—is itself the entire pending action. See Nat’l Lab. Rels. Bd. v. Frazier, 966 F.2d 812,
817 (3d Cir. 1992) (reversing a district court’s determination that a magistrate judge’s order
enforcing a subpoena was “nondispositive”); CPC Patent Techs. PTY Ltd., 34 F.4th at 808
(concluding that a “freestanding” request to enforce a subpoena under 28 U.S.C. § 1782, “filed on
its own and not in conjunction with another federal lawsuit,” was dispositive because deciding it
resolved the “ultimate” request for relief even if discovery motions are typically non-dispositive
(internal quotation marks omitted)); see also Equal Emp. Opp. Comm’n v. City of Long Branch,
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866 F.3d 93, 100-01 (3d Cir. 2017) (reversing a district court that failed to apply Frazier by treating
a magistrate judge’s order enforcing an agency’s administrative subpoena as non-dispositive).
The Magistrate Judge considered the parties’ briefing, evaluated WMATA’s declaration,
determined that the Commission was entitled to enforce its subpoena, and ordered WMATA to
comply. Because the validity of the administrative subpoena presents the sole claim for review in
this case, the Magistrate Judge’s order was dispositive, much like one granting a motion for
judgment on the pleadings or for summary judgment. See Fed. R. Civ. P. 72(b)(1)(A); Local Civ.
R. 72.3(a)(3); cf. Frazier, 966 F.2d at 817 (concluding that a magistrate judge’s denial of a petition
to enforce a subpoena had the same effect as granting a motion to dismiss). Accordingly, the
Magistrate Judge’s decision functions as an R&R to this court, which triggers this court’s de novo
review of WMATA’s objections. See Interstate Fire & Cas. Co., 917 F. Supp. 2d at 89, 94
(construing the magistrate judge’s order as an R&R and “accordingly, review[ing] the portions to
which [the party] ha[d] objected under a de novo standard”); id. at 89 (concluding that the party
objecting to the magistrate judge’s decision would “not [be] prejudice[d]” by the court’s treatment
of the decision as an R&R because it “had the opportunity to lodge its objections . . . and to brief
the relevant issues fully”); see also Fed. Trade Comm’n v. Bisaro, 757 F. Supp. 2d 1, 2
(D.D.C. 2010) (conducting de novo review of a magistrate judge’s R&R recommending that an
agency’s petition to enforce a subpoena be granted); Commodity Futures Trading Comm’n v. First
State Depository Co., No. 21-MC-48, 2021 WL 7448016, at *1 n.1 (D.D.C. June 23, 2021)
(concluding that a magistrate judge’s R&R “was appropriate” because a petition to enforce a
subpoena “is a case-dispositive matter”).
13
B. Merits
WMATA lodges four objections to the Magistrate Judge’s order. The first three concern
the Magistrate Judge’s conclusion that the administrative subpoena seeks information “within the
WMSC’s authority.” ECF No. 11, at 9. In WMATA’s view, the Magistrate Judge incorrectly
concluded that the subpoena is consistent with the Commission’s (1) “authority over ‘safety’”;
(2) responsibility to “‘audit’ WMATA’s compliance with its Safety Plan”; and (3) power to
“investigate ‘hazards.’” Id. at 9-10 (quoting ECF No. 9, at 4-5); see id. at 12-24; see also ECF
No. 9, at 4-6. Finally, WMATA contends that the Magistrate Judge erred in determining that its
compliance with the subpoena does not pose an undue burden. ECF No. 11, at 10; see id. at 24-27;
see also ECF No. 9, at 7-9. None of WMATA’s objections has merit. On de novo review, the
court agrees with the Magistrate Judge’s “disposition” of the petition: the Commission has
authority to issue its subpoena and WMATA has failed to establish that compliance poses an undue
burden. Fed. R. Civ. P. 72(b)(3). Accordingly, the court will overrule WMATA’s objections.
Before turning to WMATA’s specific objections, the court notes that WMATA appears to
misunderstand the nature of this dispute. WMATA suggests that this case, including the
Magistrate Judge’s R&R, implicates the question whether the Commission may conduct “general
regulation of workplace health and safety” outside of Metrorail. ECF No. 6, at 17; see ECF No. 11,
at 15 (arguing that the Commission was not “created . . . to regulate safety generally in whatever
form it is implicated” and asserting that the Compact does not “grant[] [the Commission] plenary
authority over all aspects of WMATA operations”). WMATA’s concerns are somewhat
understandable, especially in light of Request 11, seeking “[a]ll training requirements related
to . . . occupational health programs,” ECF No. 1-5 ¶ 11; Request 12, seeking “[a[ll training
curricula, trainings, class schedules, and exams related to . . . occupational health programs,” id.
14
¶ 12; and Request 23, seeking “[a]ll . . . occupational health reporting requirements,” id. ¶ 23—
none of which appear to be facially limited to Metrorail. But WMATA’s framing is incorrect. The
Commission has repeatedly stated that—even as to those facially broader requests—its oversight
authority extends only to Metrorail, and not to Metrobus, MetroAccess, or the Metro Transit Police
Department. ECF No. 15, at 8 n.1 (“[T]he WMSC’s authority . . . encompass[es] Metrorail
exclusively, as opposed to the other modes of transportation that WMATA provides.”). For that
reason, the Commission represents that its subpoena only seeks documents related to Metrorail.
Id. at 17 (noting that all the subpoenaed documents “relate . . . to Metrorail personnel”); see, e.g.,
ECF No. 1-5 ¶ 24 (Request 24, seeking all “occupational health inspection reports that relate to
the WMATA Rail System” (emphasis added) (footnote omitted)). That view is consistent with the
Compact, which limits the Commission’s “safety regulatory and enforcement authority” to “the
WMATA Rail System.” § 2, 131 Stat. at 1095. The court therefore understands the contested
requests in the subpoena—and the Magistrate Judge’s order directing WMATA’s compliance with
those aspects of the subpoena—to relate only to Metrorail. With that framing, the court turns to
WMATA’s specific objections.
1. The Commission’s oversight concerning the “safety” of the Metrorail system
WMATA asserts that the Magistrate Judge erroneously concluded that the Commission
has authority to issue the contested portions of the subpoena in an exercise of its general oversight
of safety-related issues on the Metrorail system. ECF No. 11, at 9-10, 12-20; see ECF No. 9,
at 3-4. The court is unpersuaded because the Magistrate Judge correctly determined that the
Commission holds broad power to investigate issues implicating Metrorail safety. The
Commission’s authority stems from multiple sources. First, federal law gives the Commission
“investigative, inspection, and enforcement authority with respect to the safety of [the Metrorail
15
system].” 49 U.S.C. § 5329(e)(4)(A)(v). In turn, the Compact vests the Commission with the
power to “enforce relevant federal and State laws and regulations relating to safety of the WMATA
Rail System.” § 30(d), 131 Stat. at 1098. These two provisions plainly authorize the Commission
to investigate and enforce safety-related issues—and to do so, the Commission may issue
subpoenas. Id. § 31(a), 131 Stat. at 1098. Whether this oversight power includes the OSH-related
topics in the subpoena thus turns on the meaning of the term “safety.”
The court begins with the text and statutory context of both Section 5329 and the Compact.
See Crowley Gov’t Servs., Inc. v. Gen. Servs. Admin., 143 F.4th 518, 532 (D.C. Cir. 2025). Neither
Section 5329 nor the Compact defines the term “safety,” see 49 U.S.C. §§ 5302, 5329; 131 Stat.
at 1093-1104, so the court interprets the term according to its “ordinary, contemporary, common
meaning,” Food Mktg. Inst. v. Argus Leader Media, 588 U.S. 427, 433-34 (2019) (quoting Perrin
v. United States, 444 U.S. 37, 42 (1979) (looking to dictionaries at the time a statute was enacted).
The court also considers “the context in which [the term ‘safety’] is used.” Solar Energy Indus.
Ass’n v. Fed. Energy Regul. Comm’n, 154 F.4th 863, 868 (D.C. Cir. 2025) (quoting Reno v. Koray,
515 U.S. 50, 56 (1995)). At the time Congress passed the Act, the ordinary, common meaning of
“safety” referred to the “condition of being safe from undergoing or causing hurt, injury, or loss.”
Safety, Merriam Webster’s Collegiate Dictionary 1095 (11th ed. 2011); see Safety, American
Heritage Dictionary 728 (5th ed. 2012) (“[f]reedom from danger, risk, or injury”); Safety,
Webster’s New World College Dictionary 1279 (5th ed. 2014) (“freedom from danger, injury, or
damage”). The same contemporary meaning existed several years later when the District,
Maryland, and Virginia formed the Commission. See Safety, Merriam-Webster Dictionary 637
(2016) (“freedom from danger”). As these definitions make plain, the meaning of the term “safety”
is broad—covering any risk of pain, injury, loss, danger, or damage—and plainly encompasses
16
OSH as WMATA uses the term. See ECF No. 1-2, at 37 (explaining that WMATA’s Office of
Occupational Safety and Health’s “priority is the health, safety, and well-being of Metro’s
workforce by minimizing injuries and illnesses from exposure to occupational hazards”). 8 And
“safety” likewise covers the items in the Commission’s subpoena because they relate to issues that
may cause or mitigate risk, danger, or injury. See, e.g., ECF No. 1-5 ¶ 3 (Request 3, seeking
program documents that cover things like scaffolding and cranes, falling objects, ventilation,
hazardous chemicals and toxic substances, physical hazards, first aid, machinery and tools, and
electrical equipment); id. ¶¶ 22, 27 (Requests 22 and 27, seeking reports on air quality, toxic and
hazardous substances, and employee safety concerns); id. ¶ 25 (Request 25, seeking “medical
monitoring results for welders and other employees who engage in hot work”). Accordingly, the
Commission’s “investigative, inspection, and enforcement authority with respect to the safety of
[the Metrorail system],” 49 U.S.C. § 5329(e)(4)(A)(v), and power to “enforce relevant federal and
State laws and regulations relating to safety of the WMATA Rail System,” § 30(d), 131 Stat.
at 1098, allow the Commission to issue and enforce its subpoena.9
WMATA reads the Compact to limit “safety” to issues arising out of the physical operation
of rail cars on Metrorail tracks—or, in other words, those matters connected to the “rail fixed
8
The citations to ECF No. 1-2 refer to the CM/ECF-generated page numbers at the top of each page rather than any internal pagination.
9
WMATA also points out that Commission members must have “backgrounds in transit safety, transportation, [or] relevant engineering disciplines,” expertise that WMATA asserts does not overlap with OSH issues. ECF No. 11, at 5 (alteration in original) (quoting § 9, 131 Stat. at 1096)). In WMATA’s view, that requirement proves that the Commission lacks oversight over anything related to OSH. Id. at 15-16. But even if the Compact’s employment qualifications could upend its plain text giving the Commission authority over Metrorail safety—and it cannot—WMATA’s argument is unpersuasive because it is circular: the Commission members’ “rail-focused expertise” bears no connection to “OSH issues” only if “transit safety” does not encompass some OSH principles, which is the very conclusion WMATA seeks to prove. Id.
17
guideway public transportation” system. ECF No. 11, at 15. Not so. The Compact contemplates
that the Commission will conduct oversight of anything relating to the safety of the “the rail fixed
guideway public transportation system and all other real and personal property owned, leased,
operated, or otherwise used by WMATA rail services and shall include WMATA rail projects
under design or construction by owners other than WMATA.” § 1(m), 131 Stat. at 1094 (emphasis
added) (defining “WMATA Rail System” or “Metrorail”). While WMATA only focuses on the
first portion of that definition, the second half sweeps much broader and gives the Commission
authority over anything that poses a risk of pain, injury, loss, danger, or damage on or to
Metrorail-related property or projects. And the Commission, when exercising its oversight power,
may investigate “WMATA personnel and contractors, property, equipment, facilities, rolling
stock, and operations of the WMATA Rail System.” Id. § 31(a), 131 Stat. at 1098. Together, the
various overlapping provisions in the Compact support an interpretation of “safety” oversight that
authorizes the portions of the subpoena that WMATA finds objectionable. For example, WMATA
contends that “lead-exposure issues” on the Metrorail have no bearing on “fixed-rail safety.” ECF
No. 11, at 5; see ECF No. 1-5 ¶ 27. But lead exposure at a Metrorail station undeniably poses a
risk of danger and injury to those on the “rail fixed guideway public transportation system.”
§ 1(m), 131 Stat. at 1094. Likewise, documents concerning ladder safety, scaffolding, and
protection from falling objects, ECF No. 1-5 ¶ 3(a), plainly address potential injury or damage to
WMATA employees and contractors on “WMATA rail projects under design or construction” and
to WMATA’s “real and personal property.” § 1(m), 131 Stat. at 1094. Because Section 5329 and
the Compact use “safety” in the broad way the word is ordinarily used, and because the
Commission’s subpoena conforms to that definition, the court rejects WMATA’s cramped reading.
18
WMATA next argues that OSH issues fall outside the Commission’s ambit because the
Compact “grant[s] [the Commission] ‘exclusive safety oversight authority and responsibility over
the WMATA Rail System.’” ECF No. 11, at 16 (quoting § 3(a), 131 Stat. at 1095); see ECF No. 9,
at 5-6. As the argument goes, because the Commission exercises exclusive authority, and because
state and federal OSH-specific agencies (like OSHA) regulate occupational safety and health, the
Commission cannot oversee OSH at all because it would necessarily share that responsibility with
other agencies. ECF No. 11, at 16-17. The court reads the Compact, and its relation to
Section 5329, differently. While it is true that the Commission has “exclusive safety oversight
authority” under the Compact, § 3(a), 131 Stat. at 1095, that exclusivity concerns only the
Commission’s role as the “safety oversight authority for WMATA under 49 U.S.C. § 5329,” id.
§ 2, 131 Stat. at 1095. Section 5329 requires the District, Maryland, and Virginia to establish one
safety oversight agency for Metrorail. See 49 U.S.C. § 5329(e)(3)(C) (requiring each state to
create a “safety oversight program” that, in turn must “establish[] a State safety oversight agency”);
id. § 5329(e)(5)(B) (requiring all states in which one rail transit system operates to “designate an
entity” that establishes a safety oversight agency (emphasis added)).10 Whereas Section 5329’s
use of the singular “agency” when describing a rail system’s safety oversight body naturally
10
It makes no difference that Section 5329 refers to the “safety oversight agency” and the Compact refers to the Commission as the exclusive “safety oversight authority.” Compare 49 U.S.C. § 5329(e)(3)(C) (“agency”), with §§ 2, 3(a), 131 Stat. at 1095 (“authority”). The text of the Compact makes clear that the Commission serves as the safety oversight agency in the manner contemplated by Section 5329. See, e.g., § 10, 131 Stat. at 1096 (requiring Commission members to be independent as required by 49 U.S.C. § 5329(e)(4)(A)(i)); id. § 30(a), 131 Stat. at 1098 (requiring the Commission to adopt and distribute a “State Safety Oversight Program,” as required under 49 U.S.C. § 5329(e)(3)); id. § 30(e), 131 Stat. at 1098 (directing the Commission to audit WMATA’s compliance with the safety plan every three years as required by 49 U.S.C. § 5329(e)(4)(A)(vi)). WMATA does not contend that the Commission operates as anything other than WMATA’s state safety oversight agency.
19
accounts for the Commission’s “exclusive” role, nothing in the Compact prohibits other entities
from conducting their own lawful oversight.
WMATA’s position—that the Commission alone has jurisdiction “over rail-related safety
issues,” ECF No. 11, at 17—also cannot be squared with Section 5329, which allows the
Department of Transportation to oversee WMATA’s safety even though the Commission is
primarily responsible for doing so. In carrying out Section 5329, the Secretary of Transportation
may inspect, investigate, audit, and test WMATA’s “equipment, facilities, rolling stock, and
operations of the public transportation system,” 49 U.S.C. § 5329(f)(1); investigate “a pattern or
practice of conduct that negatively affects public safety,” id. § 5329(f)(3); and investigate “public
transportation accidents and incidents,” id. § 5329(f)(5). The Secretary of Transportation can also
take enforcement action against WMATA, including by “requiring” it to spend federal funds on
“correcting safety deficiencies” the Secretary has identified. Id. § 5329(g)(1)(D). WMATA’s
argument also blinks reality: as WMATA’s own safety plan explains, the Department of
Transportation is not alone in exercising concurrent oversight over some rail-safety issues—the
National Transportation Safety Board also conducts “hazard analysis,” ECF No. 1-2, at 32, and
“issue[s] findings requir[ing] Metro to develop suitable [Corrective Action Plans],” id. at 45. At
bottom, the Commission exclusively performs only the role created by the Act and codified at
Section 5329(e)(4)(A), and the Compact does not purport to deprive other state and federal
agencies of their regulatory authority.11 The court therefore overrules WMATA’s first objection.
11
Indeed, Request 23, in which the Commission seeks “occupational health reporting requirements required by the federal government, the District of Columbia, Maryland, and Virginia,” ECF No. 1-5 ¶ 23, reflects the Commission’s own understanding that it exercises concurrent authority over OSH-related issues.
20
2. The Commission’s power to audit for compliance with WMATA’s Safety Plan
WMATA next objects to the Magistrate Judge’s conclusion that the Commission may
enforce its subpoena as an exercise of its power “to audit WMATA’s compliance with th[e] Safety
Plan, including the OSH provisions.” ECF No. 9, at 5; see ECF No. 11, at 23-24. The court
disagrees and will overrule the objection because the Magistrate Judge correctly decided that the
audit-related provisions “further cement[] that OSH oversight is squarely within [the
Commission’s] responsibilities.” ECF No. 9, at 5.
The Commission’s power to investigate WMATA’s compliance with WMATA’s safety
plan—including by issuing subpoenas—again derives from Section 5329 and the Compact.
Pursuant to Section 5329(d) and the Compact, the Commission must audit Metrorail’s compliance
with the agency safety plan that WMATA’s Department of Safety is required to develop.
49 U.S.C. § 5329(d)(1), (e)(4)(A)(vi); § 30(e), 131 Stat. at 1098; see ECF No. 1-2, at 8 (indicating
that WMATA creates its safety plan to comply with the Federal Transit Administration’s (“FTA”)
regulations implementing 49 U.S.C. § 5329). The plain text of Section 5329(d) and the Compact
direct the Commission to audit—and issue subpoenas concerning—any provision in WMATA’s
safety plan that affects Metrorail. See 49 U.S.C. § 5329(e)(4)(A)(vi); § 30(e), 131 Stat. at 1098.
And both do so without creating exceptions for OSH. Accordingly, as long as the safety plan
contains OSH principles, those principles apply to Metrorail, and the subpoena demands
information related to those principles, the subpoena is a proper exercise of the Commission’s
audit power.12
12
Section 5329’s requirement that each “State safety oversight program” conduct an audit of the “rail fixed guideway public transportation” system’s “compliance” with “the public transportation agency safety plan,” 49 U.S.C. § 5329(e)(4)(A)(vi), is a “federal . . . law[] . . . relating to [the]
(continued on next page)
21
Section 5329(d) neither directs nor prohibits WMATA from including OSH requirements
in the safety plan. See 49 U.S.C. § 5329(d)(1). Here, WMATA has exercised its discretion to
adopt a safety plan incorporating OSH principles—a point WMATA has effectively conceded.
See ECF No. 16, at 11 (arguing only that the Commission lacks authority to audit OSH “by virtue
of WMATA’s inclusion of OSH issues in th[e] safety plan”). The plan adopts a Safety
Management System (“SMS”) philosophy and approach to safety management. ECF No. 1-2,
at 8, 17. “SMS is a formal, organization-wide approach to managing safety risk and assuring the
effectiveness of a transit agency’s safety risk mitigation.” Fed. Transit Admin., U.S. Dep’t of
Transp., National Public Transportation Safety Plan: Version 2, at 16 (2024).13 WMATA’s safety
plan explicitly applies to Metrorail, see ECF No. 1-2, at 8, and various provisions illustrate why
the subpoena is within the Commission’s power to investigate Metrorail’s compliance with that
document.
First, the plan clarifies that the OSH team is part of WMATA’s Department of Safety. Id.
at 24-25. And the plan documents how multiple departments, including the Department of Safety,
conduct safety trainings on a wide range of topics: first aid skills for station managers; safe use of
substances for maintenance and support personnel who access chemical and hazardous materials;
and awareness of bloodborne pathogens for those who may be exposed to blood or infectious
materials as part of their employment. Id. at 47. The Department of Safety also has trainings on
asbestos, aerial lifts, cranes, electrical safety, fall protection, hearing conservation, PPE, powered
safety of the WMATA Rail System,” § 30(d), 131 Stat. at 1098. For that reason, and the reasons already explained, the subpoena is a proper exercise of the Commission’s oversight authority. See supra Section IV.B.1. Here, the court considers WMATA’s distinct objection that the audit provision in the Compact does not empower the Commission to issue and enforce its subpoena. 13
Available at https://perma.cc/RTM2-GY3X.
22
work platforms, and more. Id. at 48-49. These safety training requirements map on to the
Commission’s requests for occupational health training requirements and related materials. ECF
No. 1-5 ¶¶ 11-12 (Requests 11 and 12).
Second, the OSH team focuses on “minimizing [employees’] injuries and illnesses from
exposure to occupational hazards” and “designing solutions and workplace practices to mitigate”
any “workplace hazardous conditions.” ECF No. 1-2, at 37. The Department of Safety’s
Operations Safety Oversight team “oversee[s] safety in Metro construction projects,” while the
Safety Certification and Engineer team “develops and implements Metro’s Safety and Security
Certification Program Plan, ensuring hazards are mitigated . . . to reduce safety risks and prevent
incidents.” Id. at 24. The Environmental Management and Compliance Team “set[s] the standards
for the correct handling and disposal of hazardous materials” and “provide[s] services to
effectively manage and minimize pollution.” Id. at 25. And the plan further directs WMATA’s
departments to “identify, collect[,] and analyze the data required to measure the effectiveness of
the actions taken to reduce their safety risks as low as reasonably practicable.” Id. at 43. These
measures, coupled with the plan’s focus on data collection to encourage risk minimization,
demonstrate that Requests 3, 22, 25, 26, 27, and 28—which seek documents related to
construction, machinery, hazardous materials, toxic substances, air quality, PPE usage, decibel
exposure, and employee safety concerning Metrorail—are justified by the Commission’s audit
authority. See ECF No. 1-5 ¶¶ 3, 22, 25-28.
Not only does WMATA concede that its comprehensive safety plan contains provisions
related to OSH, see ECF No. 16, at 11, it never argues that including OSH principles in the plan
was unlawful or otherwise improper. Nor could it. WMATA’s systemwide approach to risk
management is endorsed by the FTA as a best practice that is consistent with Section 5329 and
23
designed to give WMATA flexibility to identify and mitigate all WMATA-specific safety risks.
Indeed, in its first rule implementing the Act and addressing state safety oversight, the FTA
explained that SMS is preferred because it “is flexible,” “does not impose a one-size-fits-all
methodology,” and allows a “transit agency to identify its own safety risks” for risk management.
State Safety Oversight, 81 Fed. Reg. 14230, 14232-33 (Mar. 16, 2026) (codified at 49 C.F.R.
§ 674.5 (2016)); cf. id. at 14243 (noting that state oversight safety agencies “must make
determinations based on their own expertise and authority” when ensuring that a transit agency
complies with federal regulations). Consistent with that view, WMATA has identified OSH issues
that implicate safety concerns across WMATA’s platform. Because WMATA includes OSH
standards in its safety plan and those standards apply to Metrorail, the Commission is allowed to
audit Metrorail’s compliance with the plan, including by issuing subpoenas associated with
WMATA’s rail personnel, property, equipment, facilities, and operations. 49 U.S.C.
§ 5329(e)(4)(A)(iv); § 31(a), 131 Stat. at 1098.
What is more, the FTA encourages transit systems like WMATA to include certain
OSH-related matters in their safety plans—several of which are directly targeted by the
Commission’s subpoena. The FTA is responsible for setting forth a national public transportation
safety plan, 49 U.S.C. § 5329(b)(1), and the current iteration of the national plan includes
“voluntary safety standards and recommended practices” that the FTA “strongly encourages transit
agencies . . . [to] incorporate . . . into their operations and maintenance,” National Public
Transportation Safety Plan, supra, at 16 (emphasis added). One category of voluntary standards
that the FTA encourages transit systems to adopt concerns rail transit worker protection. Id.
at 19-20. Among those worker protection standards are recommendations that rail systems adopt
safety requirements for PPE use in work zones, fall protection, electrical and power protections,
24
fire prevention measures, use of tools and equipment, and first aid and medical assistance, among
others. See id. at 20; Am. Pub. Transp. Ass’n, No. APTA-RT-OP-S-004-03, Rev. 3, Work Zone
Safety Practices, at 2-3 (2023).14 Another category of FTA-recommended voluntary standards
addresses tunnel ventilation and fire safety. National Public Transportation Safety Plan, supra,
at 17. These voluntary safety standards meaningfully overlap with WMATA’s safety plan. See
ECF No. 1-2, at 36 (noting that “Personal Protective Equipment” is a criterion for safety risk
mitigation); id. at 48-49 (identifying “required [safety] training” for employees, including “Fall
Protection” and “Electrical Safety,” among others). Additionally, these rail safety components
from the voluntary standards, as reflected in WMATA’s safety plan, are integral to the
Commission’s subpoena. See ECF No. 1-5 ¶ 3(a) (Request 3(a), seeking documents about fall
protection); id. ¶ 3(b) (Request 3(b), seeking documents about “ventilation, noise exposure . . . ,
and nonionizing radiation”); id. ¶¶ 3(d), 22 (Requests 3(d) and 22, seeking documents and reports
about PPE); id. ¶ 3(f) (Request 3(f), seeking documents related to “medical services and first aid”);
id. ¶ 3(h)-(j) (Requests 3(h) through 3(j), seeking documents about machinery and equipment); id.
¶ 25 (Request 25, seeking “medical monitoring results for welders and other employees who
engage in hot work”). Notwithstanding WMATA’s effort to distance its own safety plan from
Metrorail’s operations by insisting on a narrow interpretation of “safety,” the plan’s incorporation
of OSH principles into safety management reflects the FTA’s preference for how rail transit
systems should be mitigating rail-related safety risks.
Against the plain text of Section 5329 and the Compact, the FTA’s preference for SMS
safety-mitigation practices that reflect a jurisdiction’s needs, and the FTA’s encouragement that
14
Available at https://perma.cc/X3ZW-YNNY.
25
transit systems include OSH principles in their safety plans, WMATA nevertheless insists that the
Commission’s mandate to audit Metrorail’s compliance with the plan does not permit the
subpoena. ECF No. 11, at 23-24; see ECF No. 16, at 11-12. In WMATA’s view, if the
Commission were allowed to audit WMATA’s compliance with any provision of the safety plan,
then the Commission could audit WMATA’s non-Metrorail operations, which would exceed the
Commission’s authority under the Compact. ECF No. 11, at 23. That argument rests on a faulty
premise. Just because the Commission cannot audit WMATA’s non-Metrorail operations under
the Compact does not mean that the Commission cannot audit Metrorail’s compliance with the
plan. And as a matter of plain text, nothing in Section 5329 or the Compact prohibits the
Commission from auditing WMATA’s compliance with the safety plan as it concerns Metrorail
when the plan also applies to Metrobus, MetroAccess, and the Metro police force.15 See generally
131 Stat. at 1093-1104. The Commission asserts that authority and no more. See ECF No. 1 ¶ 8
(arguing that the Commission has jurisdiction over only “the entire Metro rail ‘system’ under
WMATA’s control”); ECF No. 7, at 3 (explaining that the Commission has authority only “over
‘safety’ in all of its forms within Metrorail”); ECF No. 15, at 3 (describing the Commission’s audit
as “ensur[ing] safety in the Metrorail system”). WMATA is therefore incorrect to suggest that the
Commission “would have this Court make a sweeping conclusion that every word in [its safety
15
While WMATA confines this argument to a purported conflict between the Commission’s subpoena and the Compact, the court notes that WMATA’s argument is inconsistent with the FTA’s understanding of how Section 5329 operates. The FTA has acknowledged that its regulation addressing state safety oversight agencies “does not prevent” such agencies “from performing additional oversight activities at their discretion pursuant to their State laws” when a safety plan “address[es] both rail and bus operations.” State Safety Oversight, 89 Fed. Reg. 83956, 83965 (Oct. 18, 2024). It therefore would not surprise federal regulators if the Commission did audit non-Metrorail operations for compliance with WMATA’s safety plan, as long as the Compact permitted it.
26
plan] falls within the WMSC’s . . . limited authority.” ECF No. 6, at 16 n.11; see supra pp. 14-15.
The court declines to adopt WMATA’s view of Section 5329 and the Compact and will overrule
WMATA’s audit-related objection.
3. The Commission’s ability to investigate hazards
WMATA objects to the Magistrate Judge’s conclusion that the subpoena is justified by the
Commission’s ability to investigate “hazards . . . on the WMATA Rail System.” ECF No. 9, at 4
(quoting § 3(d), 131 Stat. at 1095); see ECF No. 11, at 20-23. The court once again concludes on
de novo review that the Magistrate Judge appropriately rejected WMATA’s effort to narrowly
construe the Commission’s investigative and enforcement authority. The court will therefore
overrule the objection.
The Compact was designed to “empower[]” the Commission to “[i]nvestigate hazards”
only in its capacity as a “safety oversight authority” under Section 5329. § 3(d), 131 Stat.
at 1095.16 The court thus looks to how the term “hazards” is used in Section 5329. There,
Congress mandated that a transit system’s comprehensive safety plan include “strategies to
minimize the exposure of the public, personnel, and property to hazards and unsafe conditions,
and consistent with guidelines of the Centers for Disease Control and Prevention or a State health
authority, minimize exposure to infectious diseases.” 49 U.S.C. § 5329(d)(1)(D). The term
16
WMATA does not assert that the Commission lacks power to investigate “hazards” because that term appears in Article II of the Compact (addressing the Commission’s purpose and functions) rather than Article IV (addressing the Commission’s powers). See generally ECF Nos. 6, 11. Because the court “reviews ‘only those issues that the parties have raised in their objections,’” it need not consider the argument here. Edward M.-R. ex rel. T.R.-M. v. District of Columbia, 660 F. Supp. 3d 82, 97 (D.D.C. 2023) (quoting Taylor v. District of Columbia, 205 F. Supp. 3d 75, 79 (D.D.C. 2016)).
27
“unsafe conditions” is as broad as the definition of “safety,” see supra pp. 15-18, and supports
reading “hazards” to encompass the OSH-related items in the Commission’s subpoena.
Understanding “hazards” to encompass the OSH matters listed in the subpoena is further
supported by the FTA’s understanding of that term. Although the court’s task is to “independently
interpret” Section 5329, rather than rely on any agency’s construction, the court nonetheless finds
that the FTA’s interpretation of the Act, issued shortly after the law was enacted, is “especially
useful in determining the statute’s meaning.” Loper Bright Enters. v. Raimondo, 603 U.S. 369,
395 (2024). In its regulations implementing the Act’s provisions for state safety oversight, the
FTA defined “hazard” to “mean[] any real or potential condition that can cause injury, illness, or
death; damage to or loss of the facilities, equipment, rolling stock, or infrastructure of a public
transportation system; or damage to the environment.” 49 C.F.R. § 674.7. That sweeping
interpretation is fully consistent with Section 5329’s broad reach.
To be sure, some OSH requirements might not fall within Section 5329’s or the FTA’s
conception of “hazards.” But the court need not entertain those hypotheticals because the
OSH-related requests in the subpoena—for example, requests for documents about falling objects
(Request 3(a)), hazardous chemicals and waste (Request 3(c)), medical monitoring for welders
(Request 25), and bloodborne pathogens (Request 28)—concern conditions that could cause
injury, illness, or death. ECF No. 1-5 ¶¶ 3(a), 3(c), 25, 28. The subpoena therefore seeks
information about “hazards” as Section 5329 uses, and the FTA understands, the term.
In arguing otherwise, WMATA invokes the noscitur a sociis canon and argues that because
the Compact authorizes the Commission to “[i]nvestigate hazards, incidents, and accidents on the
WMATA Rail System,” § 3(d), 131 Stat. at 1095, the term “hazards” must be read in context with
“incidents” and “accidents,” ECF No. 11, at 21. WMATA then narrowly defines “incidents” and
28
“accidents” to include only “happenings that take place in connection with Metrorail’s
operations . . . such as derailments and railway fires.” Id. (internal quotation marks omitted).
From there, WMATA reaches the conclusion that “‘[h]azards . . . on the WMATA Rail System’
must be read . . . not to speak to every imaginable condition that could lead to harm, but rather to
‘hazards’ that could manifest themselves in such ‘incidents’ or ‘accidents’—hazards like ‘track
defects.’” Id. WMATA further contends that its narrow definition of “hazard” is necessary to
conform with how the term is used in another provision of the Compact authorizing the
Commission to order WMATA to “remove ‘a specific vehicle, infrastructure element, or hazard
from the WMATA Rail System.’” Id. at 22 (quoting § 31(c)(4), 131 Stat. at 1098). Again relying
on the noscitur a sociis canon, WMATA further narrows its definition of “hazards” to “physically
removable dangers.” Id.
WMATA’s invocation of the noscitur a sociis canon is unpersuasive for three reasons.
First, as the court has just explained, such a cramped definition cannot be squared with
Section 5329’s use of “hazards and unsafe conditions,” 49 U.S.C. § 5329(d)(1)(D), or the FTA’s
broad regulatory definition, 49 C.F.R. § 674.7. Indeed, Section 5329 identifies one type of hazard
or unsafe condition—“exposure to infectious diseases,” 49 U.S.C. § 5329(d)(1)(D)—that has no
connection to “physically removable dangers,” ECF No. 11, at 22, rendering WMATA’s narrow
interpretation incompatible with the plain language of Section 5329.
Next, the court has already rejected WMATA’s argument that the Compact limits the
Commission’s oversight to issues arising out of the physical operation of rail cars on Metrorail
tracks given the Compact’s definition of “WMATA Rail System.” § 1(m), 131 Stat. at 1094; see
supra pp. 17-18. Accordingly, even if the term “hazards” is limited to only those conditions that
29
“could manifest themselves in . . . ‘incidents,’ or ‘accidents,’” ECF No. 11, at 21, a “hazard” like
lead dust in a Metrorail station could result in an “incident” of lead poisoning.
Finally, WMATA’s narrow definition of “hazard” conflicts with its public position outside
this litigation. While the Commission included WMATA’s 2024 safety plan as an exhibit to the
petition to enforce the subpoena, ECF No. 1-2, the court takes judicial notice of WMATA’s 2026
safety plan for purposes of evaluating WMATA’s “hazards” argument, see Fed. R. Civ. P. 72(b)(3)
(allowing district courts to “receive further evidence” when resolving a party’s objections to a
magistrate judge’s R&R); Arab v. Blinken, 600 F. Supp. 3d 59, 63 n.1 (D.D.C. 2022) (taking
judicial notice of “information posted on official public websites of government agencies”). In the
2026 plan, WMATA includes a screenshot of a “Hazard Report,” which is managed by WMATA’s
Safety Risk Coordinators. WMATA, Public Transportation Agency Safety Plan 12 (Dec. 31,
2025).17 Among the hazards that the report identifies are “Vent Shaft Ballston,” presumably
corresponding to the Ballston Metro station in Arlington, Virginia; “WMSC Water in Elevator
Pits”; and “Diesel Exhaust in Tunnels & Employee Exposure.” Id. While the hazard report is not
an authoritative source on the proper meaning of the term “hazards,” the court nevertheless
highlights the document as evidence that even WMATA—in its comprehensive safety plan—
considers OSH-related risks to employees like poor ventilation, water danger, and exhaust
exposure as Metrorail-related “hazards” that must be mitigated. The court will therefore overrule
WMATA’s objection.
17
Available at https://perma.cc/EL3W-R723.
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4. No undue burden
Aside from WMATA’s scope-of-authority objections, WMATA contends that the
Magistrate Judge erroneously concluded that compliance with the subpoena would not be unduly
burdensome. ECF No. 11, at 24-27; ECF No. 16, at 12-15; see ECF No. 9, at 7-9. Based on the
declaration from Theresa Impastato, WMATA’s then-Executive Vice President and Chief Safety
and Readiness Officer, the Magistrate Judge determined that WMATA had “fail[ed] to sufficiently
explain why [the] WMSC’s current subpoena is burdensome” because it vaguely asserted that the
subpoena contained complex requests, failed to provide “particularized information about the
burden that the subpoena imposes,” and offered no evidence that compliance would imperil
WMATA’s “usual course of business.” ECF No. 9, at 8-9. WMATA disputes that conclusion and
has provided a supplemental declaration from Ms. Impastato. See ECF No. 11-1. In response, the
Commission asserts that WMATA forfeited any undue-burden argument by failing to raise the
issue before the Magistrate Judge, ECF No. 15, at 17, and that, on the merits, WMATA has not
adequately proved an undue burden, id. at 17-20. The court concludes that WMATA has failed to
establish that compliance would be so burdensome as to justify denying the petition.18
The Magistrate Judge correctly concluded that Ms. Impastato’s original declaration does
not substantiate WMATA’s undue burden claim. In that declaration, Ms. Impastato explained at
a high level of generality that WMATA has produced a large number of documents in response to
the Commission’s audit requests over the last seven years. ECF No. 6-1 ¶ 6. Responding to one
18
The court declines to address the Commission’s forfeiture argument because the Commission has not properly presented it. The Commission devotes just half a sentence to WMATA’s purported forfeiture. ECF No. 15, at 17. “Mentioning an argument ‘in the most skeletal way, leaving the court to do counsel’s work, create the ossature for the argument, and put flesh on its bones’ is tantamount to failing to raise it.” Al-Tamimi v. Adelson, 916 F.3d 1, 6 (D.C. Cir. 2019) (quoting Schneider v. Kissinger, 412 F.3d 190, 200 n.1 (D.C. Cir. 2005)).
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request during the COVID-19 pandemic required 1,200 hours of work. Id. Although
Ms. Impastato asserted that she and her staff spend seventy percent of their time “dealing with
WMSC requests and orders,” id. ¶ 7, some burden on WMATA “is to be expected” and
“necessary” to further the Commission’s “legitimate inquiry and the public interest,” Texaco, 555
F.2d at 882. Because the subpoena has a “lawful purpose” and the “requested documents are
relevant to that purpose,” id., Ms. Impastato’s general discussion of the labor required to respond
to all types of requests does not prove that responding to this subpoena would pose an undue
burden, see CVS Health Corp., 2025 WL 3546175, at *3 (noting that courts have rejected
undue-burden arguments when “compliance would be extremely costly, labor intensive, and in
certain cases, impossible” (quoting Invention Submission Corp., 1991 WL 47104, at *3)).
WMATA’s supplemental declaration is more specific than the first but fares no better.
Ms. Impastato, now WMATA’s Chief Infrastructure Officer, asserts that responding to the
subpoena “will conservatively consume about 3,000 working hours, or about 1.5 full-time
employees’ entire working year.” ECF No. 11-1 ¶ 7. She also explains that WMATA manages
many of the programs implicated by the subpoena on a systemwide basis, as opposed to organizing
information by Metrorail, Metrobus, and MetroAccess, so responding to the subpoena may require
employees to segregate Metrorail-specific documents to the extent doing so is possible. Id. ¶ 9.
In total, Ms. Impastato expects compliance with the subpoena to be six to ten times more
burdensome than WMATA’s compliance with the 2020 audit, which did not include requests for
OSH information. Id. ¶ 15. And, like in the original declaration, Ms. Impastato describes
examples of past audits that led to audit findings, which in turn required WMATA to take
additional steps to comply with the Commission’s determinations. Id. ¶¶ 18-21.
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The court is sympathetic to WMATA’s position. Yet the supplemental declaration fails to
establish an undue burden. Ms. Impastato’s estimation that compliance will require 3,000 hours
of work—a year’s worth of time for one or two employees—does not prove that it would be unduly
burdensome for WMATA to respond. See ECF No. 11-1 ¶ 7; ECF No. 6-1 ¶¶ 4, 7 (explaining that
Ms. Impastato and her staff, which was then more than 1,000 employees, devoted considerable
time to responding to all of the Commission’s requests). And the court is unpersuaded by
WMATA’s emphasis on the burdens WMATA has faced when responding to the Commission’s
prior audit findings. See ECF No. 11-1 ¶¶ 18-21. Those burdens are irrelevant to the court’s
undue-burden analysis here, which only concerns the effort needed to comply with one subpoena,
not the directives or findings that follow once the Commission reaches a post-audit conclusion.
See id. ¶ 20 (discussing the burden on WMATA in responding to an audit finding, including the
obligation to “develop and submit a corrective action plan for WMSC review,” which would not
be necessary when complying with the subpoena). And even if the prior burdens WMATA has
faced in responding to audit findings were relevant, the court cannot evaluate Ms. Impastato’s
comparison because WMATA has not provided the subpoenas that were issued as part of those
earlier audits.
In sum, nothing in Ms. Impastato’s declaration suggests that compliance would “unduly
disrupt or seriously hinder [WMATA’s] normal operations.” Texaco, 555 F.2d at 882 (explaining
that courts have not even modified investigative subpoenas that failed to meet that standard, let
alone refused to enforce such demands). Ms. Impastato does warn that “if [it is] not stopped, the
WMSC’s overreach will continue along a trajectory that . . . causes unsustainable operational
disruption.” ECF No. 11-1 ¶ 17. At best, that projection is conclusory and cannot sustain
WMATA’s burden because it lacks relevant details about when or why compliance will result in
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operational disruption. At worst, the assertion is non-responsive because it focuses on WMATA’s
concern for the Commission’s “overreach” generally, rather than the burden on WMATA to
respond to the sole subpoena contested here. See id. ¶¶ 17-21; see also ECF No. 11, at 26-27
(focusing on the Commission’s purported “mission creep”). The court, on de novo review, thus
concludes that compliance does not pose an undue burden and will overrule WMATA’s objection.
V. CONCLUSION
For the foregoing reasons, the court will construe the Magistrate Judge’s Order, ECF No. 9,
as a report and recommendation. Upon de novo review, the court will overrule Respondent’s
objections, adopt the report and recommendation, and enforce the subpoena. The court will further
direct the parties to file a joint status report on or before October 9, 2026, proposing a deadline for
Respondent’s production of materials responsive to the subpoena. A contemporaneous order will
issue.
LOREN L. ALIKHAN
United States District Judge
Date: September 25, 2026
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