A blog on practice in the Nation’s second-most powerful court

Can defendants waive a cause of action into existence?

No, but in the most bananas case we’ve seen in a long time, the appellees tried to do just that.

The weirdness starts with the caption:




If you were wondering, DC Metro is the Washington, DC area’s public-transit system. Metro has had its share of troubles (which may be why almost 80,000 people follow the appellant, Unsuck DC Metro, on Twitter). Last week, for example, the D.C. Circuit decided a dreadful case involving a Metro passenger who fell over a railing and lay dead for days before he was discovered.

That same day, the D.C. Circuit issued an unpublished, per curiam opinion in Unsuck DC Metro v. WMATA . Unsuck—as the opinion drily calls it—sued to force WMATA enforce its records policy and release certain documents. Unsuck lost on the merits, appealed, and got a remand ordering the district court to figure out whether there was a cause of action to enforce the records policy in the first place. We’ll call that appeal Unsuck I .

Strangely, on remand, Unsuck conceded that it lacked a cause of action to enforce the policy. Just as strangely, WMATA conceded that there was a cause of action to enforce the policy. And to complete the strangeness trifecta, the district court declined to do what it was told and punted on whether there was a cause of action.

In Unsuck II , the D.C. Circuit held that Unsuck’s concession trumped WMATA’s: “Without a cause of action, Unsuck cannot ultimately succeed on the merits of its suit. This is so regardless of whether the defendant maintains that a cause of action exists. Courts may not create a cause of action, nor can defendants waive one into existence.”

Not sure how often defendants will try to hand their opponents a cause of action. But good to know!