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Washington Metrorail Safety Commission v. Washington Metropolitan Area Transit Authority

2026-09-25

Authorities cited

Opinion

majority opinion

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

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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).

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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

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¶ 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

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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).

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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.

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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)

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▪ 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

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(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.

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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

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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

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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”).

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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.

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¶ 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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