# Petition — Brown v. D. C. Transit System, Inc.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1975
- **Citation:** 423 U.S. 862

## Text

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JUL

(© | MICHAFL :

IN THE

Supreme Court of the United States

OCTOBER TERM 1975

No.

EUGENE R. BROWN and RONALD A. GRAY,

Petitioners,

D.C. TRANSIT SYSTEM, INC. and WASHINGTON
METROPOLITAN AREA TRANSIT AUTHORITY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

JOHN H. HARMAN
WILLIAM N. COGGINS

!

Coggins, Fireison & Harman, P.A.

962 Wayne Avenue
Suite 403
Silver Spring, Maryland 20910

Counsel for Petitioners

Washington, D.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

(i)

TABLE OF CONTENTS

Page
ee ee a eee ka oe 4 ba ons 2
I A A ee ee no ak Saeki 6 Oo 66% 2
ce teed ee eee eee wae aon 2
ee 3
ee ee ee wl a ae sb wh oe ee Oot 3
REASONS FOR GRANTING THE WRIT ............. 5
ET Ws tenet oe okay dew 6 e's ows eek seeees 13
RE, | vc coc ack ees endeeena la
U.S. Constitution - Amendment V ............... la
District of Columbia Code, 1957 Edition, Title 1,
i eaten ke kaa e b'6 4:4 0 608 la
APPENDIX B — OPINIONS AND JUDGEMENT
ER CR ee eee are Pee ree ee lb

Order of the U.S. Court of Appeals for the
District of Columbia Circuit dated April 2,
1975, Denying Petitioners Suggestion of
SE ee ee ee lb

Order of the U.S. Court of Appeals, District of
Columbia Circuit dated April 2, 1975, Denying

Petitioner’s Request for Rehearing .............. 2b
Opinion and Judgment of the U.S. Court of

Appeals, Second Circuit dated February 28,

re Pree ne ee ee 3b

Amended Order of the United States District
Court for the District of Columbia, dated June
eS ee ee ee ee ee ek ee el 20b

Order of the United States District Court for the
District of Columbia dated July 19, 1973,
holding that its Memorandum Opinion involved
a controlling question of law permitting the
taking of an immediate Interlocutory Appeal ...... 23b

(ii)
Page
Memorandum Opinion, Judgment and Order of
the U.S. District Court for the District of
Columbia dated May 15,1973 ............. 13b, 19b
TABLE OF AUTHORITIES
Cases:
Boyce v. Safeway Stores, Inc., 351 F. Supp. 402
SPT eee Te eT TST eT Te TT ee Sb
Barry v. Dwen, 483 F.2d 1126 (1973) ............ 12, 13
Burton v. Wilmington Parking Authority, 365 U.S.
715, 81 S. Ct. 856, 6 L.Ed.2d 45 (1961) ......... 8, 11
Dodge v. Giant Food, Inc. 160 U.S. App. D.C. 9,
4 he eS ere ee ee Sb
Gerald Brent Fagan v. National Cash Register
Company, 157 U.S. App. D.C. 15, 481 F.2d
err eee ee eT ere Sb
Jackson v. Metropolitan Edison Company, 95 S. Ct.
NS og aie ee et as 3, 5, 6, 7, 8, 10, 11
Landsdale v. Tyler Junior College, 470 F.2d 659,
I I a gat ae a eb ok 8 12
Lindquist v. City of Coral Gables, Florida, et al,
SS F. Gm. BOS GE GUA, FOTEE os owt cee nscccs 12
Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 92 S.
es © Fe 8 ere rere 8
Olff v. East Side Union High School District, 402
RR Pa a Pee ee ee eee eee 12
Public Utilities Commission v. Pollak, 343 U.S. 451
i Si: ¢aeeenetwh ee ue da ee aE ee RE Oe a ewe 6, 8
Richards v. Thurston, 424 F.2d 1281 (ist Circuit
PE éccacudpawiue ihe dee eek bse uaeeenenes 12

Shelly v. Kraemer, 334 US. 1, 68 S. Ct. 836, 92
Sn EE, nin chk 000k 5440400005 8, 10

(iii)

Page

Stradley v. Anderson, 478 F.2d 188 ................ 12
Stull v. School Board of the Western Beaver
Junior-Senior High School, 459 F.2d 339 (3rd

eee eae og oe Wa wee OCs do's 40% 12
The Civil Rights Cases, 109 U.S. 3, 3 S. Ct. 18, 27

FEE SEW ea ce ay a ie a 8, 10

ee

IN THE

Supreme Court of the United States

OCTOBER TERM 1975

No.

EUGENE R. BROWN and RONALD A. GRAY,
Petitioners,

D.C. TRANSIT SYSTEM, INC. and WASHINGTON
METROPOLITAN AREA TRANSIT AUTHORITY,

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT

Petitioners pray that a Writ of Certiorari issue to
review the judgment of the United States Court of
Appeals for the District of Columbia Circuit entered in
the above-entitled case on February 28, 1975, with the
Petition for Rehearing and Petition for Suggestion of
Rehearing En Banc having been denied on April 2,
1975.

2
CITATIONS TO OPINIONS BELOW

The cpinion of the United States District Court for
the District of Columbia is printed in Appendix B
hereto, infra, pages 13b-18b. The opinion of the United
States Court of Appeals for the District of Columbia
Circuit is printed in Appendix B hereto, infra, pages
3b-12b. The Orders of the United States Court of
Appeals for the District of Columbia Circuit respect-
fully denying rehearing and suggestion of rehearing en
banc are printed in Appendix B hereto, infra, pages
1b-2b and are unreported.

JURISDICTION

The Judgment of the Circuit Court of Appeals was
entered on February 28, 1975, with suggestions of
rehearing and rehearing en banc being denied on April
2, 1975, (pages 1b-2b, infra). The jurisdiction of this
Court is invoked under 28 U.S.C., Section 1254(1) and
Rule 19(1)(b) of the Supreme Court Rules.

QUESTIONS PRESENTED

I. That the Court of Appeals overlooked or mis-
apprehended the law regarding Appellant, Washington
Metropolitan Area Transit Authority in failing to
determine whether or not its conduct was “private” or
“governmental action”’.

Il. That the Court of Appeals misapprehended the
law and erred as a matter of law in failing to consider
all the criteria in analyzing the nature and character of

“ a ee

3

D.C. Transit System, Inc., in determining the nexus
with the “State” or “Federal” body to establish “‘state
action” or “governmental action” subject to due
process restraints and that there is a_ sufficient
relationship to establish such nexus pursuant to Jackson
v. Metropolitan Edison, 95 S. Ct. 449 (1974).

III. The Court of Appeals did err in failing to affirm
the District Court holding, that when the Petitioners
Eugene R. Brown and Ronald A. Gray, were discharged
by D.C. Transit System, Inc., Respondent, for failure to
conform their facial hair to the styling required by D.C.
Transit Regulation No. 70-67, there was a violation of
the Fifth Amendment Rights of Eugene R. Brown and
Ronald A. Gray as a matter of substantive due process,
and that such violation was extended to Respondent
WMATA upon its re:usal to reemploy Petitioners and
the joinder of Respondent WMATA as a party
defendant by Court order and Amended Complaint.

STATUTE INVOLVED

The statutory provision involved is the Constitution
of the United States, Amendment V. The section is
printed in Appendix A, infra, page la.

STATEMENT

By service of summons and complaint dated
December 6, 1971, an action was commenced in the
United States District Court for the District of
Columbia for declaratory relief and to enjoin D.C.
Transit System, Inc. from enforcing Regulation No.
70-67 which involved grooming standards for bus

4

drivers. More particularly, the Regulation involved
certain guidelines as to the length of a bus driver’s hair
as well as the growth of mustaches, beards and sideburns.
The action had been commenced in the Federal District
Court on the basis that the Plaintiff's rights of free
expression, due process and equal protection as
provided in First, Fifth, Ninth, and Fourteenth
Amendments of the U.S. Constitution have been
violated as well as discrimination in employment on the
basis of sex in violation of Title 7 of the 1964 Civil
Rights Act, 42 U.S.C. 2000 e-2 et seq, as weil as 42
U.S.C. 1981 and U.S.C. 1983.

The Plaintiffs request for a preliminary injunction
was denied and the case proceeded on the merits. On
January 14, 1973, Respondent herein, Washington
Metropolitan Area Transit Authority (herein WMATA),
acquired certain assets of D.C. Transit System, Inc.
Subsequently, upon the refusal of WMATA to reemploy
the Plaintiffs in the case, by Motion, Amended
Complaint and Order of the District Court, Respondent
WMATA was added as a Defendant on March 12, 1973,
and thereafter participated actively.

Subsequently, Cross-Motions for Summary Judgment
were filed and hearing and argument heard thereon.

On May 15, 1973, by Memorandum of Decision and
Order the Honorable Judge Barrington D. Parker
partially granted Plaintiffs Motion for Summary
Judgment finding the regulations in question as to both
Defendants in the case were a violation of substantive
due process under the Fifth Amendment to the
Constitution of the United States. lhe District Court
specifically held that there had been sufficient regula-
tory supervision by the District of Columbia over the
past operations of D.C. Transit and the present

5

operations of WMATA to consider the actions of these
bodies to be under color of law. Relief was denied
under 42 U.S.C. 1981 and 42 U.S.C. 1983, as well as
42 U.S.C. 2000 e-2. Thereafter, on September 19,
1973, the Defendants filed a Notice of Appeal to the
United States Court of Appeals for the District of
Columbia Circuit. No appeal was noted by the
Plaintiffs.

On February 28, 1975, the United States Court of
Appeals for the District of Columbia Circuit reversed
the decision of the Honorable Barrington Parker as to
both Defendants and Appellants’ Petitions for Re-
hearing or, in the Alternative, a Suggestion of Rehearing
En Banc were respectively denied by the Court of
Appeals on April 2, 1975. The United States Court of
Appeals held that substantive due process was not
applicable to D.C. Transit System, Inc., on the basis
that, under the Supreme Court decision of Jackson y.
Metropolitan Edison Company, supra, public utility
type agencies, privately owned, even though operated
under a certificate of public convenience, etc. were not
considered to be acting in such a matter as to
constitute state or governmental action. The substantive
issues relating to the regulation itself were never
reached, the United States Court of Appeals concluding
that no jurisdiction existed.

REASONS FOR GRANTING THE WRIT

(1) Beginning on Page Two, the Honorable United
States Court of Appeals, in its decision, (Appendix B,
infra, page 4b), refers to D.C. Transit System, Inc.,

6

Appellant, thereafter identified as ‘Transit’. The only
reference to the Washington Metropolitan Area Transit
Authority as a party to the action would appzar to be
on Page Three of the Decision (Appendix B, infra, page
Sb), in footnote 3, where it is quite correctly stated
that Washington Metropolitan Area Transit Authority,
Appellant (herein WMATA), was created pursuant to an
interstate compact, authorized by Public Law 89-774,
80 Stat. 1324, 1966. It is further correctly stated that
WMATA acquired certain assets of D.C. Transit System,
Inc., as of January 14, 1973, and was not added as a
party to the action herein until March 12, 1973. The
decision of the Court of Appeals proceeded to conclude
that the “exclusive franchise” of D.C. Transit System,
Inc., Appellant, lacked controlling significance and that
it was a private corporation, privately funded and as
such had no different status than is possessed by any
corporation organized under the laws of the District of
Columbia or one created pursuant to a special act of
Congress. While the Court concluded that Transit was
subject to regulation by the Public Utilities Commis-
sion, the Court found this to be immaterial.

Considering Public Utilities Commission v. Pollak,
343 U.S. 451 (1952), the Court of Appeals concluded
that there was not a sufficiently close relationship
between the Federal Government and the actions of
D.C. Transit System, Inc. in the present case. Further
considering Jackson v. Metropolitan Edison Company,
supra, the Court of Appeals noted the recognition by
the Supreme Court that it is often a close question as
to whether particular: action is “private” or “state
action”, bringing attention to the fact that the Supreme
Court in Jackson, supra, indicated that the Company

i ne

7

was a privately owned public utility and the fact that it
operated under a certificate of public convenience and
necessity was not controlling even though such
certificate was issued by the Pennsylvania Public
Utilities Commission. The Court of Appeals proceeded
to indicate that at the time of the discharge of these
Appellees, Transit was in precisely the same situation as
the Utility named in Jackson, supra. The Court further
concluded that Transit may be distinguishable from a
private employer who has extensive private competition
and adopts grooriing standards in the interest of
keeping up with or gaining ground on that competition
but noted that even a public utility with monopoly or
quasi-monopoly status has an interest in consumer
acceptance of its services and that the utility (Transit)
herein by the issuance of a grooming regulation
governing its employees does not create a “nexus” with
the state necessary for its classification as “state action”
subject to due process restraints where, as the Court
concluded in the present case, there has been no
involvement whatever of an agency of government,
federal or “‘state’’.

All of the above criteria, reasoning and legal
conclusions were applied solely to D.C. Transit System,
Inc., and not to WMATA.

The Honorable District Court of the United States in
its Memorandum Opinion (Appendix B, infra, page 13b)
indicated sufficient regulatory supervision by the District
of Columbia over the past operations of D.C. Transit
System, Inc. and the present operations of WMATA to
consider the actions of these bodies to be under color
of state law and ordered the Defendant, Washington
Metropolitan Area Transit Authority to reinstate the

8

Plaintiffs to their former employment with full
restoration of seniority. Thus, the Honorable District
Court applied its decision and conclusions of law to
both D.C. Transit System, Inc. and WMATA.

Assuming, arguendo, that the actions of D.C. Transit
System, Inc. and the other facts and circumstances
relating thereto do not establish the required “nexus”
with the state necessary for the creation of “state
action” there is certainly sufficient substance for a
conclusion of “state action” or “governmental action”
with regard to WMATA. More than acting under a
complete monopoly, it is not a private corporation; it is
not privately funded and has a completely different
status than any other entity organized under the laws
of the District of Columbia. It is a public transit
authority, not a privately owned Public Utility like
Metropolitan Edison or D.C. Transit System, Inc., and
it is respectfully submitted that the appropriate
“nexus” is established with regard to Respondent,
WMATA, pursuant to the argument set forth hereinafter
regarding D.C. Transit System, Inc., in view of Public
Utilities Commission v. Pollak, supra, Burton ¥y.
Wilmington Parking Authority, 365 U.S. 715, 81 S. Ct.
856, 6 L.Ed.2d 45 (1961), Jackson v. Metropolitan
Edison Company, 95 §S. Ct. 449 (1974), Moose Lodge
No. 107 yv. Irvis, 407 U.S. 163, 92 S. Ct. 1965, 32
L.Ed. 627 (1972), Shelly v. Kraemer, 334 U.S. 1, 68 S.
Ct. 836, 92 L.Ed. 1161, (1948) and The Civil Rights
Cases, 109 U.S. 3, 3 S. Ct. 18, 27 L.Ed. 835 (1883).

(2) In holding the lack of the necessary “‘nexus”
between the actions of D.C. Transit System, Inc. and
any governmental agency, federal or “state”, the Court
of Appeals observed that the existence of an exclusive

eee ee rrmeneneeen:

9

franchise or monopoly lacks controlling significance as
does the regulation of Transit by the Public Utilities
Commission which the Court concluded to be im-
material for one reason, being the Commission had
exercised no jurisdiction. This amounts to a seriatum
analysis of the various factors when, in fact, the
appropriate viewpoint should be a cumulative one.
First, there is undoubtedly a total complete monopoly
without competition based upon an “exclusive fran-
chise” granted by no less authority than the Congress
of the United States. In addition, Transit provided an
essential public service supplied on a continual basis.
Thus, effectively Transit was a private entity exercising
powers traditionally exclusively reserved to the govern-
ment, whether state or Federal. The proof of this lies in
the fact that the Transit System is now operated by
WMATA which is a transit authority totally public in
character created by Congressional Act and based upon
a pact between three separate jurisdictions, two of
which are states and one of which is, or was, a federal
enclave. Moreover, while there was no investigation by
the Public Utilities Commission here, and no Order or
hearing by the Commission, it is clear that Appellees
pursued the only avenues available to them which
involved the procedures established by Union-Manage-
ment agreement. These involved a hearing by an
Appearance Committee and the filing of a Grievance
with the Union. The result of the first action was
discharge from employment and the second was
nothing. As weli, Petitioners sought the only other
avenue available, a complaint with the Human Rights
Commission of the District of Columbia which
governmental body confirmed Petitioner’s rights in

10

holding the Regulation in question invalid. The matter
proceeded then to the Equal Employment Opportunity
Commission which granted its Right to Sue Letter
without other action. Thus, governmental agencies were
involved.

(3) WMATA by its very creation and definition is a
governmental agency and its actions pursuant to the
Amended Complaint in failing to reinstate the Peti-
tioners amounts to “governmental action”, particularly
in view of the fact that WMATA has participated
throughout the proceedings since its acquisition of the
operation of the Transit System in the Washington
Metropolitan Area including not opposing their addition
as parties to the action, answers thereto, and full
participation amounting to tacit adoption of the
violative regulation in question.

Certainly, as the Supreme Court observed in Jackson,
supra, The Civil Rights Cases, Supra, affirmed the
essential dichotomy set forth in the Fourteenth
Amendment, and the Fifth Amendment, between
deprivation by the state, and thus the Federal
Government, subject to scrutiny under its provisions
and private conduct, “however discriminatory and
wrongful”, against which the Fourteenth Amendment
and thus, the Fifth Amendment, offers no shield. In
Shelly v. Kraemer, supra, the Court declined to
interfere with private action by contract or deed but
declined to permit the enforcement of any agreement
of the type and character therein set forth through the
judicial process since such would clearly be “state
action”. The present situation cannot be described as
non-analogous, in which the employer, whether Transit
or WMATA will be empowered to use judicial process,

en ee

et ad hs Dh, ty ty Gl ata

potted 1 EAR ONE Ue Btn

1]

if necessary, to force employees to leave their
employment or conform. As the Court further stated in
Jackson, supra, the inquiry must be whether there is a
sufficiently close “nexus” between the state and the
challenged action of a regulated entity so that the
action of the latter may be fairly treated as that of the
state itself. However, the determination of that ‘‘nexus”’
does not reside in any single fact or relationship but in
the aggregation of all relevant factors which, as in the
present circumstance, whether as to Transit or WMATA,
compels a finding of governmental responsibility. The
factors cannot be considered sequentially and individu-
ally and discarded. They must be considered in a
cumulative and aggregate fashion.

With regard to WMATA the factors need not be
considered. It is a public agency, not privately funded,
not privately organized but publicly founded and
funded. It is not just one among many. They were and
are the only public transportation system in existence.

in either case, they would not be unlike the situation
in Burton, supra, since while Transit was a private
lessee, in a sense, under certificate of authority by
Congress, it operated under public mandate analogous
to the publicly owned building in Burton, supra.
WMATA is even in a stronger sense the government
itself and not merely a public utility, privately owned
and operated.

The Court of Appeals erred in failing to distinguish,
or indicate a lack of distinction between D.C. Transit
System, Inc. and WMATA. Alternatively it erred as
outlined hereinbefore.

(4) With regard to WMATA particularly, its position
is no different from that of the City of Coral Gables,

12

Florida in Linquist v. City of Coral Gables, Florida, et
al, 323 F. Supp. 1161 (S.D. Fla., 1971).

(5) There is great dispute in the country among the
various Courts, both State and Federal, regarding the
substantive issues to be reached in this case, once the
jurisdictional question is disposed of in favor of the
Petitioners. Particularly, the Supreme Court has recently
granted a Writ of Certiorari to the United States Court
of Appeals for the Second Circuit in the case of Barry
v, Dwen, 74-1269. In the case of Barry v. Dwen, 483
F.2d 1126 (1973), the United States Court of Appeals
for the Second Circuit held a regulation, effectively
identical to the one in question herein, unconstitutional
in violating the due process clause of the Fourteenth
Amendment due to the failure to establish a legitimate
state interest regarding hair length. The action of the
United States Court of Appeals for the Second Circuit
was by way of affirmation of the judgment of the
District Court without opinion.

The decisions of the Second Circuit Court of Appeals
are directly in conflict with the decisions of the United
States Court of Appeals for the “ighth Circuit in the
case of Stradley v. Anderson, 478 F.2d 188. The
conflict does not stop there. See Stull v. School Board
of the Western Beaver Junior-Senior High School, 459
F.2d 339 (3rd Cir. 1972); Richards v. Thurston, 424
F.2d 1281 (1st Cir. 1970). See also Landsdale v. Tyler
Junior College, 470 F.2d 659, 669 (Sth Cir., 1972).

Regarding the substantive issue, the Supreme Court
itself has not been without controversy. See Olff v.
East Side Union High School District, 492 U.S. 1042
(1972) (Douglas J., dissenting from denial of Certio-
rari). Thus, the present case is companion in substance

13

to Barry v. Dwen, supra, which is presently pending for
hearing before the Supreme Court. Moreover, based
upon the present status of the law and the decision of
the United States Court of Appeals for the District of .
Columbia Circuit, we now have a peculiar situation in
which the jurisdictional question involving such Transit
Authorities as WMATA remains unidentified and
undelineated.

CONCLUSION
For the foregoing reasons, this petition for a Writ of
Certiorari should be granted.
Dated: July 1, 1975.

Respectfully submitted,

JOHN H. HARMAN
WILLIAM N. COGGINS

Coggins, Fireison & Harman, P.A.

962 Wayne Avenue, Suite 403
Silver Spring, Maryland 20910
587-2880

Attomeys for Petitioners

APPENDIX

—— ————
eileen om

la

APPENDIX A

AMENDMENT V.

No person shall be held to answer for a capital, or other-
wise infamous crime, unless on a presentment or indictment
of a Grand Jury, except in cases arising in the land or
naval forces, or in the Militia, when in actual service in
time of War or public danger; nor shall any person be
subject for the same offence to be twice put in jeopardy of
life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of — nor shall
private property be taken for public use, without just
compensation.

SUBCHAPTER IV.—WASHINGTON METROPOLI-
TAN AREA TRANSIT AUTHORITY COMPACT

SUBCHAPTER REFERRED TO IN OTHER SECTIONS
This subchapter is referred to in section 1-1441.

§ 1-1431. Consent of Congress given for, and adoption
of, omeaest amending compact set out under sec-
tion 1-1410.

The Congress hereby consents to, adopts and en-
acts for the District of Columbia an amendment to
the Washington Metropolitan Area Transit Regula-
tion Compact, for which Congress heretofore has
granted its consent (subchapter II of this chapter)
by adding thereto title III, known as the Washing-
ton Metropolitan Area Transit Authority Compact
(referred to in this subchapter as title ITI), sub-
stantially as set out below. (Nov. 6, 1966, 80 Stat.
1324, Pub. L. 89-774, § 1.)

CODIFICATION
In the original, words “substantially as set out below”
read “substantially as follows:". The words first quoted
have been subtituted for purpose of convenient text
classification of the provisions of this section. The
“amendment” referred to, known as the Washington
Metropolitan Area Transit Authority Compact, is set out
in note below.
AMENDMENTS
1972—Pas. (1) and (2) of § 101(a) of Act Oct. 31, 1972,
Pub. L. 92-517, 86 Stat. 1000, amended articles XII and
XVI of title III of the Washington Metropolitan Ares
Transit Regulation Compact as follows: (1) by adding
at the end of section 56 a new par. (e), and (2) by strik-
ing out “or by a private transit company” at the end of
section 82(a) and inserting in lieu thereof “whenever
such property cannot be acquired by negotiated purchase
at fe orice satisfactory to the Authority”.

Page 117

2a
TITLE 1.—ADMINISTRATION

PREAMELE

The preamble to act Nov. 6, 1966, 80 Stat. 1324, Pub. L.
60-774, provided:

“Whereas Congress heretofore has declared in the Na-
tional Capital tion Act of 1960 (Public Law
86-669, 74 Stat. 687 (D.C. Code § 1-1401 et seq.]) and in
the National Capital Act of 1965 (Public
Law 89-173, 79 Stat. 663 [D.C. Code § 1-1421 et seq.]) that
& coordinated system of rail rapid transit, bus transporte-
tion service, and ‘ghways is essential in the National
Capital Region for she satisfactory movement of people
and goods, the alleviation of present and future traffic
congestion, the economic welfare and vitality of all parts
of the Region, the effective performance of the functions
of the United States Government located within the Re-
gion, the orderly growth and development of the Region,
the comfort and convenience of the residents and visitors
to the Region, and the preservation of the beauty and
dignity of the Nation's Capital and that such a system
should be developed cooperatively by the Federal, State,
and local governments of the Nationa] Capital Region,
with the costs of the necessary facilities financed, as far
as possible, by persons using or benefiting from such
facilities and the remaining costs shared equitably among
the Federal, State, and local governments;

“Whereas in furtherance of this policy, Congress, in
title ITI of the National Capital Transportation Act of
1960 [D.C. Code §§ 1-1408, 1-1409!, authorized the District
of Columbia, the Commonwealth of Virginia, and the
State of Maryland to negotiate a Compact for the estab-
lishment of an organization, empowered, inter alia, to
provide regional transportation facilities;

“Whereas, it is the sense of the Congress that the Mass
Transit Plan authorized by the Compact and this Act
shall conform to the fullest extent practicable with the
Comprehensive Plan for the National Capital and the
general plan for the development of the National Capital
Region prepared pursuant to the National Capital Plan-
ning Act of 1952 (Public Law 82-592, 66 Stat. 781 [D.C.
Code § 1--1001 et seq.]); and

“Whereas, the District of Columbia, the Commonwealth
of Virginia and the State of Maryland, with a represent-
ative of the United States appointed by the President,
have negotiated such a Compact, known as the Washing-
ton Metropolitan Area Transit Authority Compact, which
amends the Washington Metropolitan Area Transit Reg-
ulation Compact [D.C. Code § 1-1410 note], heretofore
consented to by the Congress (Public Law 86-794, 74 Stat.
1031, as amended by Public Law 87-767, 76 Stat. 764)
{[D.C. Code § 1-1410 et seq.]), by adding thereto a title
ITI and said Compact has been enacted by Maryland
(Ch. 869, Acts of General Assembly 1965) and in sub-
stantially the same language by Virginia (Ch. 2, 1966 Acts
of Arsembly): Now, therefore, be it” (etc.).

78-800 O—73—vol. 1——-14

3a

WASHINGTON METROPOLITAN AREA
Transit AUTHORITY COMPACT

The Washington Metropolitan Area Transit Authority
Compact, referred to in this section, and constituting title
IIT‘of the Washington Metropolitan Area Transit Regula-
tion Compact of which titles I and II are set out as a note
under § 1-1410, constituted the remainder of this section.
The compact is as follows:

“TITLE OI
“ARTICLE I
“DEFINITIONS

“1. As used in this Title, the following words and terms
shall have the following meanings, unless the context
clearly requires a different meaning:

“(a) ‘Board’ means the Board of Directors of the Wash-
ington Metropolitan Area Transit Authority;

“(b) ‘Director’ means a member of the Board of Di-
rectors of the Washington Metropolitan Area Transit
Authority;

“(c) ‘Private transit companies’ and ‘private carriers’
means corporations, persons, firms or associations render-
ing transit service within the Zone pursuant to a certifi-
cate of public convenience and necessity issued by the
Washington Metropolitan Area Transit Commission or by
a franchise granted by the United States or any signatory
party to this Title;

“(d) ‘Bignatory’ means the State of Maryland, the
Commonwealth of Virginia and the District of Columbia;

“(e) ‘Btate’ includes District of Columbia;

“(f) “Transit facilities’ means all real and personal
property located in the Zone, necessary or useful in ren-
dering transit service between points within the Zone,
by means of rail, bus, water or air and any other mode of
travel, including without limitation, tracks, rights of way,
bridges, tunnels, subways, rolling stock for rail, motor
vehicle, marine and air transportation, stations, terminals
and ports, areas for parking and ail equipment, fixtures,
buildings and structures and services incidental] to or re-
quired in connection with the performance of transit
service;

“(g) “Transit services’ means the transportation of per-
sons and their packages and baggage by means of transit
facilities between pointe within the Zone including the
transportation of newspapers, express, and mai) between
such points, and charter service which originates within
the Zone but does not include taxicab service or individ-
ual-ticket-sales sightseeing cperations; and

“(h) ‘WMATC’ means Washington Metropolitan Area
Transit Commission.

“ArgTicie II
“PURPOSE AND FUNCTIONS
“Purpose
“2. The purpose of this Title is to create a regional

instrumentality, as a common agency of each signatory
party, empowered, in the manner hereinafter set forth,

4a

(1) to plan, develop, finance and cause to be operated
improved transit facilities, in coordination with transpor-
tation and general development planning for the Zone,
as part of a balanced regional] system of transportation,
utilizing to their best advantage the various modes of

ansportation, (2) to coordinate the operation of the
public and privately owned or controlled transit facilities,
to the fullest extent practicable, into a unified regional
transit system without unnecessary duplicating service,
and (3) to serve such other regional purposes and to
perform such other regional] functions as the signatories
may authorize by appropriate legisletion.

“ARTICLE III
“ORGANIZATION AND AREA
“Washington Metropolitan Area Transit Zone

“3. There is hereby created the Washington Metropoli-
tan Area Transit Zone which shall embrace the District
of Columbia, the cities of Alexandria, Falls Church and
Fairfax and the counties of Arlington and Fairfax and
political subdivisions of the Commonwealth of Virginia
located within those counties, and the counties of Mont-
gomery and Prince George's in the State of Maryland and
political subdivisions of the State of Maryland located in
said counties.

“Washington Metropolitan Area Transit Authority

“@. There is hereby created, as an instrumentality and
agency of each of the signatory parties hereto, the Wash-
ington Metropolitan Area Transit Authority which shall
be a body corporate and politic, and which shal] have the
powers and duties granted herein and such additional
powers as may hereafter be conferred upon it pursuant to
law.
“Board Membership

“5. (a) The Authority shall be governed by a Board of
six Directors consisting of two Directors for each signa-
tory. For Virginia, the Directors shall be appointed by
the Northern Virginia Transportation Commission; for
the District of Columbia by the City Council of the Dis- -
trict of Columbia from among its members, the Commis-
sioner and the Assistant to the Commissioner of the Dis-
trict of Columbia; and for Maryland, by the Washington
Suburban Transit Commission. In each instance the Di-
rector shall be appointed from among the members of the
appointing body, except as otherwise provided herein,
and shall serve for a term coincident with his term on the
body by which he was appointed. A director may be re-
moved or suspended from office only as provided by the
law of the signatory from which he was appointed. The
appointing authorities shall also appoint an alternate for

a

118

Sa

each Director, who may act only in the absence of the Di-
rector for whom he has been appointed an alternate, ex-
cept that, in the case of the District of Columbia where
only one Director and his alternate are present, such alter-
nate may act on behalf of the absent Director. Each alter-
nate shall serve at the pleasure of the appointing author-
ity. In the event of a vacancy in the office of Director or
alternate, it shall be filled in the same manner as an origi-
nal appointment.

“(b) Before entering upon the duties of his olfice each
Director and alternate director shal] take and subscribe
to the following oath (or affirmation) of office or any such
other oath or affirmation, if any, as the Constitution or
laws of the signatory he represents shall provide:

a . hereby solemnly swear (or affirm)
that I will support and defend the Constitution «if the
United States and the Constitution and Laws of the -:ate
or political jurisdiction from which I was appointed as
a director (alternate director) of the Board of Washing-
ton Metropolitan Area Transit Authority and will faith-
fully discharge the duties of the office upon which I am
about to enter.’

“Compensation of Directors and Alternates

"6. Members of the Board and alternates shall serve
without compensation but may be reimbursed for neces-
sary expenses incurred as an incident to the performance
of their‘duties.

“Organization and Procedure

“7. The Board shall provide for ite own organization
and procedure. It shall organize annually by the elec-
tion of a Chairman and Vice-Chairman from among its
members. Meetings of the Board shall be held as fre-
quently as the Board deems thatthe proper performance
of its duties requires and the Board shall keep minutes
of its meetings. The Board shall adopt rules and regu-
lations governing its meeting, minutes and transactions.

“Quorum and Actio~ > by the Board

“8. (a) Four Directors or alternates consisting of at
least one Director or alternate appointed from each Signa-
tory, shall constitute ® quorum and no action by the
Board shall be effective unless a majority of the Board,
which majority shall include at least one Director or
alternate from each Signatory, concur therein; provided,
however, that a plan of financing may be adopted or
& mass transit plan adopted, altered, revised or amended
by the unanimous vote of the Directors representing
any two Signatories.

“(b) The actions of the Board shall be expressed by
motion or resolution. Actions dealing solely with inter-
nal management of the Authority shall become effective
when directed by the Board, but no other action shall
become effective prior to the expiration of thirty days
following its adoption; provided, however, that the Board
may provide for the acceleration of any action upon a
finding that such acceleration is required for the proper
and timely performance of its functions.

6a

“Officers

“9. (a) The officers of the Authority, none of whom
shall be members of the Board, shall consist of a general
manager, a secretary, a treasurer, a comptroller and a
general counsel and such other officers as the Board may
provide. Except for the office of general manager and
comptroller, the Board may consolidate any of such other
offices in one person. All such officers shall be appointed
and may be removed by the Board, shall serve at the
pleasure of the Board and shall perform such duties and
functions as the Board shall specify. The Board shall
fix and determine the compensation to be paid to all of-
ficers and, except for the general manager who shall be a
full-time employee, all other officers may be hired on a
full-time or part-time »ssis and may be compensated on
a salary or fee basis, es the Board may determine. All
employees and such officers as the Board may designate
shall be appointed and removed by the general manager
under such rules of procedure and standards as the Board
may determine.

“(b) The general manager shall be the chief adminis-
trative officer of the Authority and, subject to policy
direction by the Board, shall be responsible for all activi-
ties of the Authority.

“(c) The treasurer shall be the custodian of the funds
of the Authority, shall keep an account of all receipts
and disbursements and shell make payments only upon
warrants duly and regularly signed by the Chairman or
Vice-Chairman of the Board, or other person authorized
by the Board to do so, and by the secretary or general
manager; provided, however, that the Board may provide
that warrants not exceeding such amounts or for such
purposes as may from time to time be specified by the
one Gene te Gees Wy Ge Gas Games © WwW
persons designated by him.

“(d) An oath of office in the form set out in Section
5(b) of this Article shall be taken, subscribed and filed
with the Board by all appointed officers.

“(e) Each Director, officer and employees specified by
the Board shall give such bond in such form and amount
as the Board may require, the premium for which shall
be paid by the Authority.

“Conflict of Interests

“10. (a) No Director, officer or employee shall:

“(1) be financially interested, either directly or in-
directly, in any contract, sale, purchase, lease or trans-
fer of real or personal property to which the Board
or the Authority is a party;

“(2) in connection with services performed within
the scope of his official duties, solicit or accept money
or any other thing of value in addition to the com-
pensation or expenses paid to him by the Authority;

“(3) offer money or any thing of value for or in
consideration of obtaining an appointment, prorotion
or privilege in his employment with the Authority.

“(b) Any Director, officer or employee who shall will-

fully violate any provision of this section shall, in the
discretion of the Board, forfeit his office or employment.

e 119

7a

“(c) Any contract or agreement made in contravention
of this section may be declared void by the Board.

“(d) Nothing in this section shall be construed to
abrogate or limit the applicability of any federal or
state law which may be violated by any action prescribed
by this section.

“ARTICLE IV

“PLEDGE OF COOPERATION

“11. Each Signatory pledges to each other faithful
cooperation in the achievement of the purposes and
objects of this Title.

“ARTICLE V

“GENERAL POWERS
“Enumeration

“12. In addition to the powers and duties elsewhere
described in this Title, and except as limited in this
Title, the Authority may:

“(a) Sue and be sued;

“(b) Adopt and use a corporate seal and alter the
same at pleasure;

“(c) Adopt, amend, and repeal rules and regulations
respecting the exercise of the powers conferred by this
Title;

“(d) Construct, acquire, own, operate, maintain, con-
trol, sell and convey real and personal property and any
interest therein by contract, purchase, condemnation,
lease, license, mortgage or otherwise but all of said prop-
erty shall be located in the Zone and shall be necessary
or useful in rendering transit service or in activities inci-
dental thereto;

“(e) Receive and accept such payments, appropriations,
grants, gifts, loans, advances and other funds, properties
and services may be transferred or made available to
it by any signatory party, any political subdivision or
agency thereof, by tne United States, or by any agency
thereof, or by any other public or private corporation or
individual, and enter into agreements to make reimburse-
ment for all or any part thereof;

“(f) Enter into and perform contracts, leases and agree-
ments with any person, firm or corporation or with any
political subdivision or agency of any signatory party
or with the federal government, or any agency thereof,
including, but not limited to, contracts or agreements to
furnish transit facilities and service;

“(g) Create and abolish offices, employments and posi-
tions (other than those specifically provided for herein)
as it deems necessary for the purposes of the Authority,
and fix and provide for the qualification, appointment,
removal, term, tenure, compensation, pension and retire-
ment rights of its officers and employees without — to
the laws of any of the signatories;

“(h) Establish, in its discretion, a system
based on merit and fitness and, subject to eligibility,

8a

participate in the pension and retirement plans of any
signatory, or politica] subdivision or agency thereof, upon
terms and conditions mutually acceptable;

“(1) Contract for or employ any professional services;

“(j) Control and regulate the use of facilities owned
or controlled by the Authority, the service to be rendered
and the fares and charges to be made therefor;

“(k) Hold public hearings and conduct investigations
relating to any matter affecting transportation in the
Zone with which the Authority is concerned and, in
connection therewith, subpena witnesses, papers, records
and documents; or delegate such authority to any officer.
Each director may administer oaths or affirmations in any
proceeding or investigation;

“(1) Make or participate in studies of all phases and
forms of transportation, including transportation vehicle
research and development techniques and methods for
determining traffic projections, demand motivations, and
fiscal research and publicize and make available the re-
sults of such studies and other information relating to
transportation; and

“(m) Exercise, subject to the limitations and restric-
tions herein imposed, all powers reasonably necessary or
essential to the declared objects and purposes of this
Title.

“ARTICLE VI

“PLANNING
“Mass Transit Plan

“13. (a) The Board shall develop and adopt, and may
from time to time review and revise, a mass transit plan
for the immediate and long-range needs of the Zone.
The mass transit plan shall include one or more plans
designating (1) the transit facilities to be provided by
the Authority, including the locations of terminals,
stations, platforms, parking facilities and the character
and nature thereof; (2) the design and location of such
facilities; (3) whether such facilities are to be constructed
or acquired by lease, purchase or condemnation; (4) a
timetable for the provision of such facilities; (5) the
anticipated capital costs; (6) estimated operating ex-
penses and revenues relating thereto; and (7) the various
other factors and considerations, which, in the opinion of
the Board, justify and require the projects therein pro-
posed. Such plan shall specify the type of equipment
to be utilized, the areas to be served, the routes and
schedules of service expected to be provided and the
probable fares and charges therefor.

“(b) In preparing the mass transit plan, and in any
review of revision thereof, the Board shall make full
utilization of all data, studies, reports and information
available from the National Capital Transportation
Agency and from any other agencies of the federal govern-
ment, and from signatories and the political subdivisions
thereof.

“Planning Process

“14. (a) The mass transit plan, and any revisions,
alterations or amendments thereof, shall be coordinated,
through the procedures hereinafter set forth, with

“(1) other plans and programs affecting transpor-
tation in the Zone in order to achieve a balanced system

9a

of transportation, utilizing each mode to its best
advantage;

“(2) the general plan or plans for the development
of the Zone; and

“(3) the development plans of the various political
subdivisions embraced within the Zone.

“(b) It shall be the duty and responsibility of each
member of the Board to serve as liaison between the
Board and the body which appointed him to the Board.
To provide a framework for regional participation in the
planning process, the Board shall create technical com-
mittees concerned with planning and collection and anal-
yses of data relative to decision-making in the trans-
portation planning process and the Commissioners of the
District of Columbia, the component governments of the
Northern Virginia Transportation District and the
Washington Suburban Transit District shall appoint
reprecentatives to such technical committees and other-
wise cooperate with the Board in the formulation of a
mass transit plan, or in revisions, alterations or amend-
ments therof.

“(c) The Board, in the preparation, revision, alteration
or amendment of a mags transit plan, shall

“(1) consider data with respect to current and pro-
spective conditions in the Zone, including, without
limitation, land use, population, economic factors af-
fecting development plans, goals or objectives for the
development of the Zone and the separate political sub-
divisions, transit demands to be generated by such de-
velopment, travel patterns, existing and proposed trans-
portation and transit facilities, impact of transit plans
on the dislocation of families and businerses, preser-
vation of the beauty and dignity of the Nation's Capi-
tal, factors affecting environmental amenities and
aesthetics and financial resources;

“(2) cooperate with and participate in any contin-
ous, comprehensive transportation planning process
cooperatively established by the highway agencies of
the signatories and the local political subdivisions in
the Zone to meet the planning standards now or here-
after prescribed by the Federal-Aid Highway Acts; and

“(3) to the extent not inconsistent with or duplica-
tive of the planning process specified in subparagraph
(2) of this paragraph (c), cooperate with the National
Capital Planning Commission, the National Capital
Regional] Planning Council, the Washington Metropol-
itan Council] of Governments, the Washington Metro-
politan Area Transit Commission, the highway agencies
of the Signatories, the Maryland-National Capital Park
and Planning Commission, the Northern Virginia
Regional Planning and Economic Development Com-
mission, the Maryland State Planning Department and
the Commission of Fine Arts. Such cooperation shall
include the creation, as necessary, of technical com-
mittees composed of personnel, appointed by such
agencies, concerned with planning and collection and
analysis of data relative to decisionmaking in the
transportation planning process.

Page 120

10a

“Adoption of Mass Transit Plan
“15. (a) Before a mass transit plan is adopted, altered,
revised or amended, the Board shall transmit such pro-
posed plan, alteration, revision or amendment for com-
ment to the following and to such other agencies as the

Board shall determine:

“(1) the Commissioners of the District of Columbia,
the Northern Virginia Transportation Commission and
the Washington Suburban Transit Commission;

“(2) the goveruing bodies of the Counties and Cities
embraced within the Zone;

“(3) the highway agencies of the Signatories;

“(4) the Washington Metropolitan Area Transit
Commission;

“(5) the Washington Metropolitan Council of Gov-
ernments;

“(6) the National Capital Planning Commission;

“(7) The National Capital Regional Planning Council;

“(8) the Maryland-National Capital Park and Plan-
ning Commission;

“(9) the Northern Virginia Regional Planning and
Economic Development Commission;

“(10) the Maryland State Planning Department; and

“(11) the private transit companies operating in the
Zone and the Labor Unions reprerenting the employees
of such companies and employees of contractors pro-
viding service under operating contracts.

“Information with respect thereto shall be released
to the public. A copy of the proposed mass transit pian,
amendment or revision, ehall be kept at the office of the
Board ard shall be available for public inspection. After
thirty days’ notice published once a week for two suc-
cessive weeks in one or more newspapers of general cir-
culation within the Zone, a public hearing shall be held
with respect t» the proposed plan, alteration, revision or
amendment. ‘The thirty days’ notice shall begin to run
on the first day the notice appears in any such newspapers.
The Board shell consider the evidence submitted and
statements and comments made at such hearing and may
make any changes in the proposed plan, amendment or
revision which \t deems appropriate and such Changes may
be made without further hearing.

“AnTiaz VII
“FINANCING

“Policy

“16. With due regard for the policy of Congress for
financing a mass transit plan for the Zone set forth in
Section 204(g) of the Nationa) Capital Transportation Act
of 1960 (74 Stat. 587), it is hereby declared to be the
policy of this Title that, as far as possible, the payment
of all costs shall be borne by the persons using or bene-
fiting from the Authority's facilities and services and any

teat tet ti eee

lla

remaining costs shall be equitably shared among the
federal, District of Columbia and participating local gov-
ernments in the Zone. The allocation among such gov-
ernments of such remaining costs shall be determined
by agreement among them and shall be provided in the
manner hereinafter specified.

“Plan of Financing

“17. (a) The Authority, in conformance with said policy,
shall prepare and adopt a plan for financing the con-
struction, acquisition. and operation of facilities epeci-
fied in a mass transit plan adopted pursuant to Article
VI hereof, or in any alteration, revision or amendment
thereof. Such of financing shall specify the facilities to
be constructed or acquired, the cost thereof, the principal
arnount of revenue bonds, equipment trust certificates,
and other evidences of debt proposed to be issued, the
principal terms and provisions of all loans and underly-
ing agreements and indentures, estimated operating ex-
penses and revenues, and the proposed allocation among
the federal, District of Columbia, and participating local
governments of the remaining costs and deficits, if any,
and such other information as the Commission may con-
sider appropriate.

“(b) Such plan of financing sha!l constitute a proposal
to the interested governments for financial participation
and shall not impose any obligation on any government
and such obligations shall be created only as provided
in Section 18 of this Article VII.

“Commitments for Financial Participation

“18. (a) Commitments on behalf of the portion of the
Zone located in Virginia shall be by contract or agree-
ment by the Authority with the Northern Virginia Trans-
portatic District, or its component governments, as au-
thorized in the Transportation District Act of 1964 (Ch.
631, 1964 Acts of Virignia Assembly), to contribute to the
capital required for the construction and/or acquisition
of facilities specified in a mass transit plan adopted as
provided in Article VI, or any alteration, revision or
amendment thereof, and for meeting expenses and obli-
gations in the operation of such facilities. No such con-
tract or agreement, however, shall be entered into by the
Authority with the Northern Virginia Transportation Dis-
trict unless said District has entered into the contracts
or agreements with its member governrnents, as contem-
plated by Section 1(b) (4) of Article 4 of said Act, which
contracts or agreements expressly provide that such con-
tracts or agreements shall inure to the benefit of the Au-
thority and shall be enforceable by the Authority in ac-
cordance with the provisions of Section 2, Article 5 of
said Act, and such contracts or agreements are acceptable
to the Board. The Genera] Assembly of Virginia hereby
authorizes and designates the Authority as the agency
to plan for and provide transit facilities and services for
the area of Virginia encompassed within the Zone within
the contemplation of Article 1, Section 3(c) of said Act.

“(b) Commitments on behalf of the portion of the Zone
located in Maryland shall be by contract or agreement by

12a

the Authority with the Washington Suburban Transit
District, pursuant to which the Authority undertakes to
provide transit facilities and service in consideration for
the agreement by said District to contribute to the capital
required for the construction and/or acquisition of
facilities specified in a mass transit plan adopted as pro-
vided in Article VI, or in any alteration, revision or
amendment thereof, and for meeting expenses and obli-
gations incurred in the operation of such facilities.

“(c) With respect to the District of Columbia and the
federal government, the commitment or obligation to
render financial assistance shall be created by appropris-
tion or in such other manner, or by such other legislation,
as the Congress shall determine. If prior to making such
commitment by or on behalf of the District of Columbia,
legislation is enacted by the Congress granting the gov-
erning body of the District of Columbia plenary power
to create obligations and levy taxes, the commitment by
the District of Columbia shall be by contract or agree-
ment between the governing body of the District of
Columbia and the Authority, pursuant to which the
Authority undertakes, subject to the provisions of Section
20 hereof, to provide transit facilities and service in con-
sideration for the undertaking by the District of Colum-
bia to contribute to the capital required for the construc-
tion and/or acquisition of facilities specified in a mass
transit plan adopted as provided in Article VI, or in any
alteration, revision or amendment thereof, and for meet-
ing expenses and obligations incurred in the operation of
such facilities.

“Administrative Expenses

“19. Prior to the time the Authority has receipts from
appropriations and contracts or agreements as provided
in Section 18 of this Article VII, the expenses of the Au-
thority for administration and for preparation of @ mass
transit and financing plan, including all engineering,
financia!, legal and other services required in connection
therewith, shall, to the extent funds for such expenses are
not provided through grants by the federal government,
be borne by the District of Columbia, by the Washington
Suburban Transit District and the component govern-
ments of the Northern Virginia Transportation District.
Such expenses shall be allocated among such govern~-
ments on the basis of population as reflected by the latest
available population statistics of the Bureeu of the Cen-
sus; provided, however, that upon the request of any
Director the Board shall make the allocation upon esti-
mates of population acceptable to the Board. The allo-
cations shall be made by the Board and shall be included
in the annual current expense budget prepared by the
Board.

“Acquisition of Facilities from Federal or Other Agencies

“20. (a) The Authority is authorized to acquire by pur-
chase, lease or grant or in any manner other than
condemnation, from the federal government, or any
agency thereof, from the District of Columbia, Maryland
or Virginia, or any political subdivision or agency thereof,
any transit and related facilities, including real and per-

e 121

13a

sonal property and all other assets, located within the
Zone, whether in operation or under construction. Such
acquisition shall be made upon such terms and condi-
tions as may be agreed upon and subject to such au-
thorization or approval] by the Congress and the govern-
ing body of the District of Columbis, as may be required:
provided, however, that if such acquisition imposes or
may impose any further or additional obligation or
ability upon the Washington Suburban Transit District,
the Northern Virginia Transportation District, or any
component government thereof, under any contract with
the Authority, the Authority shall not make such acquisi-
tion until any such affected contract has been appro-
priately amended.

“(b) For such purpose, the Authority is authorized to
assume all] liabilities and contracts relating thereto, to
assume responsibility as primary obligor, endorser or
guarantor on any outstanding revenue bonds, equipment
trust certificates or other form of indebtedness author-
ized in this Act issued by such predecessor agency or
agencies and, in connection therewith, to become a party
to, and assume the obligations of, any indenture or loan
agreement underlying or issued in connection with any
outstanding securities or debts.

“Temporary Borrowing

“21. The Board may borrow, in anticipation of receipts,
from any signatory, the Washington Suburban Transit
District, the Northern Virginia Transportation District
or any component government thereof, or from any lend-
ing institution for any purposes of this title, includ-
ing administrative expenses. Such loans shal] be for a
term not to exceed two years and at such rates of inter-
est as shall be acceptable to the Board. The signatories
and any such political subdivision or agency may, in
its discretion, make such loans from any available money.

“Punding

“22. The Board shal] not construct or ulre any of the
transit facilities specified in a maas anal plan eaopted
pursuant to the provisions of Article VI of this Title, or
in any alteration, revision or amendment thereof, nor
make any commitme. ts or incur any obligations with
respect thereto until nds are available therefor.

“ARTICLE VIII
“BUDGET

“23. The Board shall annually adopt a capital budget,
including all capital projects it proposes to undertake or
pimp Rage aah budget period, containing a state-

e estimated cost of each ec th
eh = project and the method

“Current Expense Budget
“24. The Board shall annually adopt a current expense

budget for each fiscal year. Such budget shall include
the Board's estimated expenditures for administration,

14a

operation, maintenance and repairs, debt service require-
ments and payments to be made into any funds required
to be maintained. The total of such expenses shall be
“alanced by the Board's estimated revenues and receipts
from all sources, excluding funds included in the capital
budget or otherwise earmarked for other purposes.

“Adoption and Distribution of Budgets

“25. (a) Following the adoption by the Board of annual
capital and current expense budgets, the general manager
shall transmit certified copies of such budgets to the prin-
cipal budget officer of the federal government, the Dis-
trict of Columbia, the Washington Suburban Transit
District and of the component governments of the North-
ern Virginia Transportation Commission at such time and
in such manner as may be required under their respective
budgetary procedures.

“(b) Each budget shall indicate the amounts, if any,
required from the federal government, the Government
of the District of Columbia, the Washington Suburban
Transit District and the component governments of the
Northern Virginia Transportation District, determined
in accordance with the commitments made pursuant to
Article VII, Section 18 of this Title, to balance each of
said budgets.

“Payments

“26. Subject to such review and approval as may be
required by their budgetary or other applicable processes,
the federal government, the Government of the District
of Columbia, the Washington Suburban Transit District
and the component governments of the Northern Virginia
Transportation District shall include in their respective
budgets next to be adopted and appropriate or otherwise
provide the amounts certified to each of them as set forth
in the budgets.

“ARTICLE IX
“REVENUE BONDS
“Borrowing Power

“27. The Authority may borrow money for any of the
purposes of this Title, may issue ite negotiable bonds
and other evidences of indebtedness in respect thereto
and may mortgage or pledge its properties, revenues and
contracts as security therefor.

“All such bonds and evidences of indebtedness shall be
payable solely out of the properties and revenues of the
Authority. The bonds and other obligations of the Au-

thority, except as may be otherwise provided in the in-
denture under which they were issued, shall be direct
and general obligations of the Authority and the full
faith and credit of the Authority are hereby pledged for
the prompt payment of the debt service thereon and for
the fulfillment of all other undertakings of the Authority
assumed dy if to or for the benefit of the holders thereof.

“Punds and Expenses
“28. The purposes of this Title shall include, without
limitation, all costa of any project or facility or any part
thereof, including interest during a period of construction

eh Ye

of any signatory party, political subdivision or agency
thereof, or to impose any obligation for payment of the
bonds upon any signatory party, political subdivision or
agency thereof, but may pledge the contracts of such

in part as to principal and interest by the United States
shall not be issued without approval of the Secretary of
the Treasury. Neither the Directors nor any person ex-
ecuting the bonds shall be liable personally on the bonds
of the Authority or be subject to any persona! liability or
accountability by reason of the issuance thereof.

“Punding and Refunding

“30. Whenever the Board deems it expedient, it may
fund and refund the bonds and other obligations of the
Authority whether or not such bonds and obligations
have matured. It may provide for the issuance, sale or
exchange of refunding bonds for the purpose of redeem-
ing or retiring any bonds (including the payment of any
premium, duplicate interest or each cash adjustment re-
quired in connection therewith) issued by the Authority
or issued by any other issuing body, the proceeds of the
sale of which have been applied to any facility acquired
by the Authority or which are payable out of the revenues
of any facility acquired by the Authority. Bonds may be
issued partly to refund bonds and other obligations then
outstanding, and partly for any other purpose of the
Authority. All provisions of this Title applicable to the
issuance of bonds are applicable to refunding bonds and
to the issuance, sale or exchange thereof.

“Bonds; Authorization Generally

“31. Bonds and other indebtedness of the Atuhority
shall be authorized by resolution of the Board. The
validity of the authorization and issuance of any bonds
by the Authority shall not be dependent upon nor af-
fected in any way by: (1) the deposition of bond proceeds
by the Board or by contract, commitment or action taken
with respect to such proceeds; or (li) the failure to com-
plete any part of the project for which bonds are su-
thorized to be issued. The Authority may issue bonds

Page 122

16a

in one or ssore series and may provide for or more
consolidated bond ussues, in such principal amounts and
with such terms and provisions as the Board may deem
necessary. The bonds may be secured by a pledge of all
or any part of the property, revenues and franchises un-
der its control. Bonds may be issued by the Authority
in such amount, with such maturities and in such denom-
inations and form or forms, whether coupon or regis-
tered, as to principal alone or as to both principal and
interest, as may be determined by the Board. The Board
may provide for redemption of bonds prior to maturity
on such notice and at such time or times and with such
redemption provisions, including premiums, as the Board
may determine.
“Bonds; Resolutions and Indertures Generally

“32. The Board may determine and enter into inden-
tures or adopt resolutions providing for the principal
amount, date or dates, maturities, interest rate, or rates.
denominations, form, registration, transfer, interchange
and other provisions of the bonds and coupons and the
terms and conditions upon which the same shall be exe-
cuted, issued, secured, sold, paid, redeemed, funded and
refunded. The resolution of the Board authorizing any
bond or any indenture so authorized under which the
bonds are issued may include all such covenants and
other provisions not inconsistent with the provisions of
this Title, other than any restriction on the regulatory
powers vested in the Board by this Title, es the Board
may deem necessary or desirable for the issue, payment,
security, protection or marketing of the bonds, includ-
ing without limitation covenants and other provisions
as to the rates or amounts of fees, rents and other
charges to be charged or made for use of the facilities;
the use, pledge, custody, securing, application and dis-
position of such revenues, of the proceeds of the bonds,
and of any other moneys or contracts of the Authority;
the operation, maintenance, repair and reconstruction
of the facilities and the amounts which may be expended
therefor; the sale, lease or other disposition of the facili-
ties; the insuring of the facilities and of the revenues
derived therefrom; the construction or other acqulisi-
tion of other facilities; the issuance of additional bonds
or other indebtedness; the rights of the bondholders and
of any trustee for the bondholders upon default by the
Authority or otherwise; and the modification of the
provisions of the indenture and of the bonds. Refer-
ence on the face of the bonds to such resolution or
indenture by its date of adoption or the apparent date
on the face thereof is sufficient to incorporate all of the
provisions thereof and of this Title into the body of the
bonds and their appurtenant coupons. Each taker and
subsequent holder of the bonds or coupons, whether the
coupons are attached to or detached from the bonds, has
recourse to all of the provisions of the indenture and of
this Title and is bound thereby.

oe het

17a

“Maximum Maturity

“33. No bond or its terms shall mature in more than
fifty years from its own date and in the event any author-
ized tesue is divided into two or more series or divisions,
the maximum maturity date herein authorized shall be
calculated from the date on the face of each bond sepa-
rately, irrespective of the fact that different dates may
be prescribed for the bonds of each separate series or
division of any authorized issue. :

“Tax Exemption
“34. All bonds and all other evidences of debt issued
by the Authority under the provisions of this Title and
the interest thereon shall at all times be free and exempt
from all taxation by or under authority of any signatory
parties, except for transfer, inheritance and estate taxes.

“Interest

“35. Bonds shall bear interest at such rate or rates as
may be determined by the Board, payable annually or
semiannually.

“Place of Payment

“36. The Board may provide for the payment of the
principal and interest of bonds at any place or places
within or without the signatory states, and in any speci-
fied lawful coin or currency of the United States of
America.

“Execution

“37. The Board may provide for the execution and
authentication of bonds by the manual, lithographed or
printed facsimile signature of members of the Board,
and by additional authentication by a trustee or fiscal
agent appointec by the Board; provided, however, that
one of such signatures shall be manual. If any o/ the
members whose signatures or countersignatures appear
upon the bonds or coupons cease to be members before
the delivery of the bonds or coupons, their signatures
or countersignatures are nevertheless valid and of the
same force and effect as if the members had remained in
office until the delivery of the bonds and coupons.

“Holding Own Bonds

“38. The Board shall have power out of any funds
available therefor to purchase its bonds and may hold,
cancel or resell such bonds.

18a

on the redemption of any bonds prior to maturity.
bonds issued and sold pursuant to this title may be
in such manner, either at public or private sale, as
Board shall determine.

“Negotiability
“40. All bonds issued under the provisions of this Titie
are negotiable instruments.

“Bonds Eligible for Investment and Deposit

“41. Bonds issued under the provisions of this Title
are hereby made securities in which all public officers
and public agencies of the signatories and their po-
litical subdivisions and all banks, trust companies, sav-
ings and loan associations, investment companies and
others carrying on a banking business, all insurance com-
panies and insurance associations and others carrying
on an insurance business, all administrators, executors,
guardians, trustees and other fiduciaries, and all other
persons may legally and properly invest funds, includ-
ing capital in their control or belonging to them. Such
bonds are hereby made securities which may properly and
legally be deposited with and received by any officer of
any signatory, or of any agency or political subdivision
of any signatory, for any purpose for which the deposit
of bonds or other obligations of such signatory is now
or may hereafter be authorized by law.

“Validation Proceedings

“42. Prior to the issuance of any bonds, the Board
may institute a special proceeding to determine the
legality of proceedings to issue the bonds and their
validity under the laws of any of the signatory parties.
Such proceeding shall be instituted and prosecuted in
rem and the final judgment rendered therein shall be
conclusive against all persons whomsoever and against
each of the signatory parties.

“Recording

“43. No indenture need be recorded or filed in any public
office, other than the office of the Board. The pledge
of revenues provided in any identure shall take effect
forthwith as provided therein and irrespective of the
dave of receipt of such revenues by the Board of the
indenture trustee. Such pledge shall be effective as pro-
vided in the indenture without physical delivery of the
revenues to the Board of to the indenture trustee.

“Pledged Revenues

“44. Bond redemption and interest payments shall, to
the extent provided in the resolution or indenture, con-
stitute a first, direct and exclusive charge and lien on
all revenues received from the use and operation of the
facility, and on any sinking or other funds created
therefrom. All such revenues, together with interest
thereon, shall constitute a trust fund for the security
and payment of such bonds and except as and to the
extent provided in the indenture with respect to the pay-
ment therefrom of expenses for other purposes including

All
sold
the

et S HOA AT ORD

i et a ed

123

19a

administration, operation, maintenance, improvements or
extensions of the facilities or other purposes shall not
be used or pledged for any other purpose so long as
such bonds, or any of them, are outstanding and unpaid.

“Remedies

“45. The holder of any bond may for the equal bene-
fit and protection of all holders of bonds similarly
situated: (1) by mandamus or other appropriate pro-
ceedings require and compel the performance of any of
the duties imposed upon the Board or assumed by it,
its officers, agents or employees under the provisions of
any indenture, in connection with the acquisition, con-
struction, operation, maintenance, repair, reconstruction
or insurance of the facilities, or in connection with the
collection, deposit, investment, application and disburse-
ment of the revenues derived from the operation and use
of the facilities, or in connection with the deposit, invest-
ment and disbursement of the received from
=
set out\in the appendix to title 1. See also §§ 301 and 503
of the
TRAN or Functions To Distaicr oF CoLuMBIA

CouncrL

967, effective

Section (425) of Reorg. Plan No. 3 of 1967,

November \$, 1967, transferred the regulatory and other
functions ¢f the Board of Commissioners, with respect to
appointing|two directors as specified in section 5(@) of the
compact out as a note to this section (the appoint-
made from a group of individuals, as specified

nts to
4 425 af the Plan) to the District of Columbia Coun-
cil, subject the right of the Commissioner as provided
by section of the Plan. For provisions establishing

Columbia Council, see section 201 of Re-

the District
lan No. 3 of 1967, set out in the appendix

organization
to this title.
Cross REFERENCES

Blind and ysically disabled persons, equal access to
public conveyances, see § 6—-1502.

Relocation yments and assistance to persons dis-
and projects of Washington Metro-
t Authority, see § 5-732.

(a) The Congress hereby consents to amendments
to articles I, III, VII, IX, XI, XIV, and XVI of title
II of the Washington Metropolitan Area Transit
Regulation Compact substantially as set out in the
note below section 1-1431.

(b) The Commissioner of the District of Columbia
is authorized and directed to enter into and execute
on behalf of the District of Columbia amendments,
substantially as set forth in subsection (a), to title
Ill of the Washington Metropolitan Area Transit
Regulation Compact with the States of Virginia and
Maryland. (July 13, 1972, Pub. L. 92-349, title I,
§ 301, 86 Stat. 466.)

CODIFICATION -

In subsec, (a), the words “substantially as set out in
the note below section 1-1431" have been substituted for
“(D.C. Code, sec. 1-1431 note) substantially as follows:”.

REFERENCE IN TEXT

The cited amendments are to the following sections
within the articles of the Compact: 1(g), 5(a), 21, 35, 39,
51, 66, and 79.

§ 1-1431b. Censent of Congress to compact amend-
ments—Acquisition of mass transit bus systems.

(a) The Congress hereby consents to amendments
to articles XII and XVI of title ITI of the Washing-
ton Metropolitan Area Transit Regulation Compact
substantially as set out in the note below section
1-1431.

(b) The Commissioner of the District of Columbia
is authorized and directed to enter into and execute
on behalf of the District of Columbia amendments,
substantially as set forth above, to title III of the
Washington Metropolitan Area Transit Regulation
Compact with the States of Virginia and Maryland.
(Oct. 21, 1972, Pub. L. 92-517, title I, § 101, 86 Stat.

1000.)
CoprmrriIcaTIon
In subsec. (a), the words “substantially as set out in
the note below section 1-1431" have been substituted for
“(D.C. Code, sec. 1-1431 note) substantially as follows:”.

38a

REFERENCE rn TEXT

The cited amendments are to sections 56(¢) and 82(8)
of the Compact.

§ 1-1432. Authority and duty of Commissioner to ex-
ecute and carry out compact.

The Commissioner of the District of Columbia
is authorized and directed enter into and exe-
cute an amendment to the pact substantially as
set forth above with the States of Virginia and Mary-
land and is further authorized and directed to
carry out and effectuate the terms and provisions
of said Title III, and there are hereby authorized
to be appropriated out of District of Columbia funds
such amounts as are necessary to carry out the
obligations of the District of Columbia in accordance
with the terms of the said Title III. (Nov. 6, 1966, 80
Stat. 1352, Pub. L. 89-774, § 2.)

Rerzaxxces wr Text
Words “amendment to the Compact substantially as
set forth above” and “Title III”, as used in this section,

refer to the Washington Metropolitan Area Transit Au-
thority Compact, set out as a note under § 1~1431.

Transrea oF Puwcrions To CoMMISSIONE:
967,

Bee § 401 of Reorg. Plan No. 3 of 1967, eff. Nov. 8, 1
set out in the appendix to title 1. See also §§ 301 and

608 of the Pian.

- of functio , documents,
- 0. Toenstee, Eee a Plans—Ad-

visory services.

(a) To assure uninterrupted progress in the de-
velopment of the facilities authorized by the Na-
tional Capital Transportation Act of 1965, the trans-
fer of the functions and duties of the National
Capital Transportation Agency (herein referred to
as the Agency) to the Washington Metropolitan
Area Transit Authority (herein referred to as the

Authority) as required by section 1-1408(b) shall

take place on September 30, 1967.
(b) Upon the effective date of the transfer of

functions and duties authorized by subsection (a) of
this section, the President is authorized to transfer
to the Authority such real and personal property,
studies, reports, records, and other assets and lia-
bilities as are appropriate in order that the Author-
ity may assume the functions and duties of the
Agency and, further, the President shall make pro-

39a

vision for the transfer to the Authority of the unex-
— balance of the appropriations, and of other
unds, of the Agency for use by the Authority but
such unexpended balances so transferred shall be
used only for the purpose for which such appropria-
tions were originally made. Subsequent to said ef-
fective date, there is authorized to be appropriated to
the Department of Housing and Urban Develop-
ment, for payment to the Authority, any inten.
Priated portion of the authorization specified in sec-
tion 1-1424(a)(1). There is also authorized to be
appropriated to the District of Columbia out of the
general fund of the District of Columbia, for pay-
ment to the Authority, any unappropriated portion
of the authorization specified in section 1-1424(a)
pg ae such appropriations shall be used only
i e eo for which such authorizations were
(c) Pending the assumption b th
the functions and duties of the y Ang greed
is authorized and directed, in the manner herein set
forth, fully to cooperate with and assist the Author-
ity, the Northern Virginia Transportation Commis-
Sion and the Washington Suburban Transit Com-
mission in the development of Plans for the exten-
sions, new lines and related facilities required to ex-
pand the basic system authorized by the National
Capital Transportation Act of 1965 into a regional
system, but pending such transfer of functions and
duties, nothing in this subchapter shall be construed
to impair the performance by the Agency of the
functions and duties imposed by the National Capi-
tal Transportation Act of 1965.
(d) In order to provide the cooperation and as-
sistance specified in subsection (c) of this section,
the Agency is authorized to perform, on a reimburs-

(e) Amounts received by the Agency from the Au-
thority as provided in subsecticn (d) of this section
shall be available for expenditure by the Agency in
performing services for the Authority. (Nov. 6, 1966
80 Stat. 1352, Pub. L. 89-774, § 3.)

40a

Rercraences 1x TExtT
The National Capital Transportation Act of 1965, re-
ferred to in aubsecs. (8) and (c), is clazsified to § 1-1421

et seq.
CoprmrIcaTION
Section was also classified to 40 U.S.C. 672.
TRANSFER OF FUNCTIONS

Section 1(#) (3) of Reorg. Plan No. 2, of 1968, eff. June
30, 1968, transferred the functions of the Department of
Housing and Urban Development, under subsection (b) of
this section, to the Secretary of Transportation. For com-
plete details of the Plan, see appendix to this title.

PRESIDENTIAL EXECUTIVE ORDER 11373

PROVIDING FOR CERTAIN TRANSFERS FROM THE
NATIONAL CAPITAL TRANSPORTATION AGENCY TO
THE WASHINGTON METROPOLITAN AREA TRANSIT
AUTHORITY
Ex. Ord. No. 11373, Sept. 20, 1967, 32 F.R. 11371,

provided:

By virtue of the authority vested in me by section 3(b)
of the Act of November 6, 1966 (PL. 89-774; 80 Stat. 1352;
40 U.S.C. 672(b)) [subsec. b of this section] and by sec-
tion 301 of title $3 of the United States Code, & is ordered
as follows:

Section 1. (#) There are hereby transferred to the
Washington Metropolitan Area Transit Authority, effec-
tive on September 30, 1967, (1) all real and personal prop-
erty, studies, and reports of the National Capital Trans-
portation Agency, (ii) the records of that Agency, except
records relating to individual employees or officers, and
(ill) so much of the other assets, and so much of the
Mabilities, of that Agency as the Director of the Bureau
of the Budget shall determine.

(b) Such measures and dispositions as may be neces-
sary to effectuate the transfers provided for in subsection
(a) of this section shall be carried out by the Director of
the Bureau of the Budget or by such officers and agencies
of the Executive Branch of the Government as he may
designate therefor under the authority of this subsection.

Sec. 2. The authority conferred upon the President by
the provisions of the above-mentioned section 3(b) to

make provision for the transfer to the Washington Metro-
politan Area Transit Authority of the unexpended balance
of the appropriations, and of other funds, of the National
Capital Transportation Agency is hereby delegated to the
Director of the Bureau of the Budget.

§ 1-1434. Jurisdiction of courts—Removal of actions.
The United States District Courts shall have
original jurisdiction, concurrent with the Courts of
Maryland and Virginia, of all actions brought by
or against the Authority and to enforce subpoenas

issued pursuant to the provisions of Title III. Any
such action initiated in a State court shall be re-

4la

movable to the appropriate United States District
Court in the manner provided by section 1446 of
title 28, U.S. Code. (Nov. 6, 1966, 80 Stat. 1353,
Pub. L. 89-~774, § 4.)

- REFERENCES In TEXT
“Title III", as used in this section, refers to the Wash-
ington Metropolitan Area Transi Compact
anteater,
§1-1488 “.mendment of laws and reorganization plans.
(a) All laws or parts of laws of the United States
ant 4 Gs Ghee af Genta meena
the provisions of Title III are hereby amended for
the purpose of this subchapter to the extent neces-
sary to eliminate such inconsistencies and to carry
out the provisions of this subchapter and Title DI
and all laws or parts of laws and all reorganization
plans of the United States are hereby amended and
made applicable for the purpose of this subchapter
to the extent necessary to carry out the provisions
of this subchapter and Title III. (Nov. 6, 1966, 80
Stat. 1353, Pub. L. 89-774, § 5(a).)

| REFERENCES ix TEXT
“Title III”, as used in this section, refers to the Wash-

ington Metropolitan Area Transit Authority Com
which 1s set out ass note under §1-1431. —_

§ 1-1436. Reservation of ri
elite ym so of 2 yy he
ee ~~ _ ormation—Access to and rec-

(a) The right to alter, amend or re
chapter is hereby expressly reserved. —a

(b) The Authority shall submit to Congress and
the President copies of all annual and special re-
ports made to the Governors, the Commissioner of
the District of Columbia and/or the legislatures of
the compacting States.

(c) The President and the Congress or any com-
mittee thereof shall have the right to require the
disclosure and furnishing of such information by
the Authority as they may deem appropriate. Fur-
ther, the President and Congress or any of its com-
mittees shall have access to all books, records and
papers of the Authority as well as the right of in-
spection of any facility used, owned, leased, regu-
lated or under the control of said Authority.

(d) In carrying out the audits provided for in
section 70(b) of the Compact the representatives of

42a

the Genera] Accounting Office shall have access to
all books, accounts, financial records, reports, files,
and all other papers, things, or property belonging
to or in use by the Board and necessary to facilitate
the audit, and they shall be afforded full facilities
for verifying transactions with the balances or se-
curities held by depositories, agents, and custodians.
(Nov. 6, 1966, 80 Stat. 1353, F ab. L. 89-774, § 6.)

REFERENCES In TEXT

The Compact, referred to in subsec. (d) of this section,
is the Washington Metropolitan Area Transit Authority
Compact, which, along with §70(b) thereof, also re-
ferred to in this section, is set out as a note under
§ 1-1431.

TRANSFER OF FUNCTIONS TO COMMISSIONER

Seo § 401 of Reorg. Plan No. 3 of 1967, eff. Nov. 3, 1967,
set out in the appendix to title 1. See also §§301 and
503 of the Plan.

K CeiWweb A 75

United States Court of Appeals

FOR TRE DISTRICT OF COLUMBIA CIRCUIT

—————

No.
73-2008 September Term, |9 5,
Bugene 2. Brow, et al. Civil Action 2426-71
Inited States Court oj Apneals

v.
for the Cistrict of Columa.2 Circe

D.C. Pransit System, Inc., et al.,

AFk 2 Wir
LED
, an REE HUGH E. KLINE
lees rehearing * CLERK
tted to the full Court and ne Juige having requester

& vote thereen, it is

ORDERED the Court appellees’ resaid
suggestion AY rehearing en mene, toa aves =

For the Court:

HUGH E. KLINE
Clerk

2b

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

—_—_—

September Term, 19 7.

No. 73-2089 Civil Action 2426-71

Eugene R. Brown, et al.
Vv.

D. C. Transit System, Inc., et al., ; APK 2 19/>
un Appellants hal

Danaher, Senior Circuit Judge; Leventhal and WibeeywsH E£. KLINE

fore: CLERK
= Circuit Judges.

QRDER
On consideration of appellees’ petition for rehearing,

it is
ORDERED by the Court that appellees’ aforesaid petition .

is denied.
Per Curiam
For the Court:

HUGH E. KLINE
Clerk

RE Cr
/
3b “ED $9? »

A
7” *2>p_,

Notice: This opinion is subject to formal revision before publication
in the Federal Reporter or U.S. App. D.C. Reports. Users are requested
to notify the Clerk of any formal errors in order that corrections may be
made before the bound volumes go to press.

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 73-2089

EUGENE R. BROWN, ET AL, APPELLEES
V.

D.C. TRANSIT SYSTEM, INC., ET AL, APPELLANTS

Appeal from the United States District Court
for the District of Columbia

(D.C. Civil Action 2426-71)

Decided February 28, 1975

Harold Smith for appellant, D.C. Transit System,
Inc.

Peter G. Ciano for appellant, Washington Metropolitan
Area Transit Authority.

John H. Harmon, for appellees.

Before: DANAHER, Senior Circuit Judge, LEVENTHAL
and WILKEY, Circuit Judges.

Opinion for the Court filed by Senior Circuit Judge
DANAHER.

4b

DANAHER, Senior Circuit Judge: The above-named ne
pellees (hereinafter, “Plaintiffs”) were bus drivers -" =
employ of D.C. Transit System, Tne. _— _
“Transit” ) whose services were terminated, as Pan 4
tric. judge found, “because of failure to sassy -
fac al hair to the styling required by D.C. Transit _
tion #70-67.” * He concluded after consideration 0) a
motions for summary judgment that Transit s Regu a 2
and the discharge of the Plaintiffs were in a, 0
their Fifth Amendment rights. In response to a aw
of D.C. Transit, the district judge issued an order a
found that the court’s Fifth Amendment ruling invo “7
a controlling question of law as t» which there 2 :
stantial ground for difference of opinion, and t 1a .
appeal from it may materially advance termination 0

1“Their non-conformity consisted of no om —_—
imately two inches below their earlo and...
‘Seetton ehen’ teshion toward their mouths,” the judge found.

2D. C. Transit Regulation +70-67 states:

(1) Employees must be clean and neat and operators
must be clothed in full regulation uniform.

must be clean shaven (exceptions: a

was ae may be worn provided that it is neatly
trimmed, follows the contour of the upper lip and
does not exceed to a point lower than a horizontal
line projected from the bottom of the lower mp:
(a) a dickey (slang), a patch of hair worn jus
below the center of the lower lip, may be worn
provided that it does not exceed 1/.” in width, length
and protrusion). as

i ust be trimmed neatly. It must no
” anak te cover the ears or extend over the neck

net t] d not to
4) Sideburns must be trimmed | neatly and are
7 exceed a point lower than 1/,” below the earlob.

(5) Beards, goatees and any item not covered above
are not permissible.

Sb

the litigation, see 28 U.S.C. §1292(b). The corporate
defendants* have brought this appeal from the partial
summary judgment granted Plaintiffs. We have accepted
jurisdiction over this interlocutory appeal. The respec-
tive parties on brief agree that the Fifth Amendment
determination presents the sole issue before us. We re-
verse and remand with directions that judgment be en-
tered in favor of the appellants and that Plaintiffs’ com-
plaint be dismissed.

I

The district judge concluded that Plaintiffs’ claim
based on statutory grounds had failed. Specifically he
ruled that “Regulation +#70-67 does not discriminate
against persons because of their race or sex and provides
no basis for a claim cognizable under 42 U.S.C. § 1981
or § 2000e-2.” Moreover, since the District of Columbia
is not a “State or Territory” within the meaning of 42
U.S.C. § 1983, the Plaintiffs “are entitled to no relief
under that statute,” citing District of Columbia v. Carter,
409 U.S. 418 (1973).* Succinctly the district judge thus
ruled before turning to the Plaintiffs’ claim of denial of
substantive due process under the Fifth Amendment.

* D.C. Transit System, Inc., was a privately owned corpo-
ration organized under legislation appertaining to the District
of Columbia; Washington Metropolitan Area Transit Au-
thority (herein, WMATA) was created pursuant to an inter-
state compact, authorized by Pub.L. 89-774, 80 Stat. 1324,
1966, and reached the District, and certain areas in Virginia
and Maryland. WMATA acquired certain assets of D.C.

Transit as of January 14, 1978, and was not added as a party
to this action until March 12, 1973.

Transit terminated the service of appellee Brown on Sep-
tember 22, 1971, and of appellee Gray on October 7, 1971.

* See Fagan v. National Cash Register Co., 157 U.S.App.D.C.
15, 481 F.2d 1115 (1973); ef. Dodge v. Giant Food, Inc., 160
U.S.App.D.C. 9, 488 F.2d 1333 (1973); Boyce v. Safeway
Stores, Inc., 351 F.Supp. 402 (D.D.C. 1972); Baker v. Cali-
fornia Land Title Co., No. 72-2568 (CA 9, Dec. 4, 1974).

6b

Plaintiffs had claimed that Regulation No. 70-67 would
have forced them to modify their facial hair style, and
so was-an “extreme and gross suppresssion of them as
black men and [was] a badge of slavery” depriving
them “of their racial identity and virility.” But there
were 1800 employees, 1100 of whom were black, all others
were white, indeed there were three women bus drivers.
At the time the Plaintiffs were terminated, the regulation
had been invoked against certain white drivers as well,
at least one of whom had thereupon brought his facial
hair style into conformity. The district judge specifically
had found that there was no discrimination “against per-
sons because of their race or sex,” text supra.

Even so, as the judge initiated his inquiry, his opinion
epitomized his premise thus:

The right of an adult to wear his hair in the
fashion of his own choosing . . . has been identified
as an aspect of liberty which is protected from un-
warranted government interference.

II

It is clear enough that the district judge perceived
Transit as “operating under an exclusive franchise” which
“eould have no concern” as to how its bus drivers might
wear their hair “as an aspect of liberty which is pro-
tected from unwarranted government interference.” The
judge saw Transit’s grooming regulation as an “inter-
ference” with Plaintiffs’ rights. In that context, the trier
viewed his problem, apparently, as one of balancing the
respective interests of the Plaintiffs in contrast to the

position of Transit.

In the first place, that Transit was operating under
an “exclusive franchise” surely lacks controlling signifi-
cance. It was a private corporation, privately funded,
and so had no different status as such an entity than is
possessed by any corporation organized under the laws

7b

of the District of Columbia or one create pursuant to a
special act of Congress. Transit’s status as a legal entity
was no different from that of the National Cash Register
Company or that of Giant Food, Incorporated, or Safeway
Stores, Incorporated, all heretofore involved in varying
respects.’ True it is that Transit was subject to regula-
tion by the Public Utilities Commission, but that fact
again, is immaterial here. For one thing, the Commission
had exercised no jurisdiction over this subject matter
Moreover, there had not even been an application for
relief presented to the Commission so that it might con-
sider whether it could or should exercise jurisdiction.

We have given consideration to Public Utilities ,
v. Pollak, 343 U.S. 451 (1952), reversing dpc
position as announced in 89 U.S.App.D.C. 94, 191 F.2d
450 (1951). Capital Transit, the utility there involved
had a charter for the operation of a public transportation
system on the streets of Washington, to be sure. In
addition, however, the Commission had ordered on in-
vestigation of, and after hearings, had rejected Pollak’s
complaint against the exposure of the captive audience.
the riding public, to the utility’s broadcasting. The Court
pointed out that the First and Fifth Amendments were
applicable to and restrictive only of “the Federal Govern-
ment * and not private persons,” id. 343 U.S. 461.

Fr note 4, supra.

ompare the Court’s observations as to th

Come e stat

utility in Jackson v. Metropolitan Edison me, ace

449, 4
ee (1974), as related to other Pennsylvania corpo-

* The Pollak Court noted that the grant of
private entity imposed no obligation os the State, poo ag- fa h
the utility was bound to furnish services to the public “Street.
cars and busses are subject to the immediate control of their
owner and operator and, by virtue of their dedication to pub-

8b

Those Amendments nevertheless were considered because
the Court saw “a sufficiently close relation between the
Federal Government and the radio service,” id. 343 US.
462, as to require scrutiny. It was noted that the Public
Utilities Commission, pursuant to protests against the
utility's radio program, had “ordered an investigation
of it and, after formal public hearings, ordered its in-
vestigation dismissed on the ground that the public safety,
comfort and convenience were not impaired thereby.
Id. 348 U.S. 462. In short, under the circumstances de-
veloped in Pollak, the Court concluded that the Commis-
sion’s action had been consistent with its discretion to act
in the overall public interest.

The Court re-examined Pollak, supra, in Jackson v.
Metropolitan Edison Company, 95 S.Ct. 449 (1974). Re-
jecting the claim that Jackson presented an instance of
“state action’, the Court recognized that there often
is a close question as to whether particular action is
“private” or “state action.” Noting that the company
was a privately owned public utility, the fact that it was

lic service, they are for the common use of all of their pas-
sengers.” 343 U.S. at 464.

as a passenger had sought to override the possible
anes of aor alee users and even the considered
judgment of the federally authorized Public Utilities Com-
mission. “The protection afforded to the liberty of the in-
dividual by the Fifth Amendment . . . does not go that far,
id., 343 U.S. at 465. The Court reasoned that the utility s
practice against which Pollak had contended was not unlike
the result of other management decisions as when a utility
makes a change in its running schedules or in the location
of its stops in the interests of a majority of its riders, even
against the vigorous protests of the few who may be incon-
venienced by the company-ordered changes. In short, the
utility’s action was “constitutionally permissible, id., 343
U.S. at 466. Mr. Justice Black, concurring, observed er
the “record shows no violation of the Due Process Clause o
the Fifth Amendment.” Id. at 466.

9b

operating under a certificate of public convenience and
necessity issued by the Pennsylvania Public Utilities Com-
mission,’ was not controlling. That a business is subject
even to extensive state regulation does not by itself con-

vert its action, vis-a-vis its customers, into that of the
State.

Here Transit at the time of the discharge of these
Plaintiffs was in precisely the same situation as the
utility named in Jackson. Although it was heavily regu-
lated, its actions were not, ipso facto, “state action.”
The Federal Government had not claimed control over the
management decision in the adoption of the challenged
regulation. The unreported opinion of the district judge
noted that Regulation +70-67 had been “adopted in the
interest of morale of employees [and] so as to be properly
presentable to the public and in the interest of safety...”.
He then reasoned that Transit’s “legitimate interest” in
requiring its employees to be “properly presentable to
the public” was limited to situations which would “affect
the conduct of its business.” He thus would superimpose
the decision of a federal court upon a prerogative of

’ We can readily realize that such an isolated fact is not
finally determinative. Considering such a determination to
present a close question, Judge Friendly sagely observed that

determination of government action in such cases as
this hinges on the weighing of a number of variables,
principally the degree of government involvement, the
offensiveness of the conduct, and the value of preserving
a private sector free from the constitutional requirements
applicable to government institutions. Wahba v. New
York University, 492 F.2d 96, 102 (2 CA 1974).

In Jackson, text supra, the Court stated the test thus:

[T]he inquiry must be whether there is a sufficiently
close nexus between the State and the challenged action
of the regulated entity so that the action of the latter
may be fairly treated as that of the State itself... .
Id., 95 S. Ct. at 453.

10b

Transit’s management. In short, the district judge simply
would have denied the employer’s right to prescribe rea-
sonable grooming regulations for its employees in their
constant contact with the public.

Of course individual citizens have a constitutional right
to wear beards, sideburns and mustaches in any form
and to any length they may choose. But that is not a
right protected by the Federal Government, by statute
or otherwise, in a situation where a private employer
has prescribed regulations governing the grooming of its
employees while in that employer’s service. The wearing
of a uniform, the type of uniform, the requirement of
hirsute conformity applicable to whites and blacks alike,
are simply non-discriminatory conditions of employment
falling within the ambit of managerial decision to pro-
mote the best interests of its business.

Heretofore we have summed up the problem in terms
of private employment thus:

But equally it seems obvious to us, that one seek-
ing an employment opportunity as in owr situation
where hair length readily can be changed, may be
required to conform to reasonable grooming. stand-
ards designed to further the employing company’s
interest by which that very opportunity is provided.
There is no suggestion that the company regulation
is pretextual or that it has been derived otherwise
than in complete good faith.* (Emphasis in original)

We are aware that Transit may be distinguishable
from a private employer who has extensive private com-
petition and adopts grooming standards in the interest of

* Fagan v. National Cash Register Co., supra note 4, 157
U.S.App.D.C. at 25, 481 F.2d at 1125. See also Willingham
v. Macon Telegraph Publishing Company, 352 F. Supp. 1018
(M.D.Ga. 1972), reversed, 482 F.2d 535 (5 CA 1973), in turn
reversed en banc 11-4, —— F.2d —— (5 CA Feb. 12, 1975).

11b

keeping up with or gaining ground on that competition.”
But even a public utility with monopoly or quasi-monopoly
status has an interest in consumer acceptance of its
services. A utility’s grooming regulation governing its
employees does not have the nexus with the state neces-
sary for its classification as “state action” subject to
due process restraints where, as here, there has been
no involvement whatever of an agency of government,
federal or “state.” We find here no order, no investiga-
tion and hearing, not even an application to the agency
to determine whether it could or should consider the
possibility that some element of the public interest was
adversely affected by the company’s regulation.

We are satisfied that the district judge correctly con-
cluded that Plaintiffs were entitled to no relief under
42 U.S.C. §§ 1981, 1983 or 2000e-2..°° We are equally

* Fagan v. National Cash Register Co., su
.. supra 157 U.S.App.
D.C. at 25, 481 F.2d at 1125: “Good grooming iaaiiaiene

reflect a company’s policy in our highly competitive business
environment.”

Yet other cases treating of differing situations simply are
not decisive as we hold that our case has presented no denial
of due process under the Fifth Amendment.

*°'We here have not been concerned with the reasonable-
ness vel non of school hair regulations or even with other
situations involving “state” action. The district judge, how-
ever, had cited without specific application, certain cases, now
mentioned only because we have considered all of them. But,
we take as an example, his citation of the opinion of Mr.
J ustice Douglas who alone dissented from the denial of
certiorari in Off v. East Side Union High School District
404 U.S. 1042 (1972), where he wrote in part

It seems incredible that under our federalism a State
can deny a student education in its public school system
unless his hair style ccmports with the standards of the
school board.

[Continued]

12b

confident that there has been no “state action,” such
as is essential to establish a claim of denial of due process
under the Fifth Amendment. Accordingly, on this aspect
of the case, we will reverse and remand with directions
that judgment be entered in favor of the appellants and
that Plaintiffs’ complaint be dismissed.

Reversed and remanded.

© [Continued ]
The opinion of the Ninth Circuit in the companion case of
King v. Saddleback Junior College District, 445 F.2d 932, 940
(1971) had said

We do not believe that the plaintiffs have established
the existence of any substantial constitutional right
which is in these two instances being infringed.

Again the opinion below had cited Karr v. Schmidt, 460
F.2d 609 (1972), where the Fifth Circuit sitting en banc
(after quoting Mr. Justice Black at 611, and see his memo-
randum at 401 U.S. 1201, 1202 (1971)) announced as a per
se rule that the district courts were to dismiss a complaint
which had merely alleged the constitutional invalidity of a
high school hair and grooming regulation.

The Plaintiffs here had cited, as in the district court,
Lindquist v. City of Coral Gables, 323 F. Supp. 1161 (S.D.
Fla. 1971), where the plaintiff had relied in part upon 42
U.S.C. §§ 1981 and 1983. On the other hand, in another “side-
burns” situation, Yarbrough v. City of Jacksonville, 363 F.
Supp. 1176 (M.D. Fla. 1973), Judge Scott, 363 F.Supp. at
1180, explicitly refused to follow Lindquist v. City of Coral
Gables, supra.

We are thoroughly aware of and have carefully considered
yet other “state action” cases, not applicable here, such as
Stradley v. Andersen, 478 F.2d 188, 191 (8 CA 1973); Dwen
v. Barry, Commissioner, 483 F.2d 1126 (2 CA 1973), and
Friedman v. Froehlke, 470 F.2d 1351 (1 CA 1972).

13b

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

RECEIVED
MAY 7 1973
[illegible]
EUGENE R. BROWN, et al *
Plaintiffs .
" * Civil
* Action No.
D. C. TRANSIT SYSTEM, INC. * 2426-71
and ¥
WASHINGTON METROPOLITAN AREA °
TRANSIT AUTHORITY .
Defendants *
MEMORANDUM OPINION

In this action seeking declaratory and injunctive relief
and damages the plaintiffs challenge their discharge
from employment as bus operators for defendant D. C.
Transit System, Inc. (“D.C. Transit”) and seek
reinstatement to their positions with D.C. Transit’s
successor, Washington Metropolitan Area Transit Au-
thority. (“WMATA”).' For determination now by the
Court are cross-motions for summary judgment.

The plaintiffs were terminated as employees of D. C.
Transit because of failure to conform their facial hair to
the styling required by D.C. Transit Regulation
# 70-67.? Their non-conformity consisted of sideburns

14b

extending approximately two inches below their
earlobes and extending in “mutton chop” fashion
toward their mouths. They contend that the adverse
action taken against them under the authority of that
Regulation violates rights assured to them by 42 U.S.C.
§§1981, 1983 and 2000e-2° and by the First, Fifth
and Ninth Amendments to the Constitution.

Plaintiffs’ claims under 42 U.S.C. §§ 1981, 1983 and
2000e-2 are without merit. While there has been
sufficient regulatory supervision by the District of
Columbia over the past operations of D.C. Transit and
the present operations of WMATA to consider the
actions of these bodies to be under color of law, Public
Utilities Commission of the District of Columbia v.
Pollak, 343 U.S. 451, 462 (1952), the District of
Columbia is not a “State or Territory’ within the
meaning of 42 U.S.C. §1983 and plaintiffs are entitled
to no relief under that statue [sic]. District of
Columbia vy. Carter, 93 S. Ct. 602, 603-4 (1973).
Furthermore, Regulation #70-67 does not discriminate
against persons because of their race or sex and
provides no basis for a claim cognizable under 42
U.S.C. §1981 or §2000e-2.

Because plaintiffs’ claims based on statutory rights
have failed the Court will consider the constitutional
issues, the most serious of which is premised on the
denial of substantive due process under the Fifth
Amendment. The question is whether Regulation
#70-67 deprives plaintiffs of rights protected by that
Amendment, and if so, whether there is a sufficiently
substantial government interest which justifies such a
deprivation.

The right of an adult to wear his hair in the fashion
of his own choosing, a matter which has proviked

15b

considerable judicial concern, has been identified as an
aspect of liberty which is protected from unwarranted
government interference. Lansdale v. Tyler Junior
College, 470 F.2d 659, 664 (Sth Cir. 1972: Karr vy.
Schmidt, 460 F.2d 609, 615n. (Sth Cir. 1972);
Richards v. Thurston, 424 F.2d 1281, 1285 (lst Cir.
1970); Breen v. Kahl, 419 F.2d 1034, 1036 (7th Cir.
1969); Conard v. Goolsby, 350 F.Supp. 713, 717 (N.D.
Miss. 1972); Lindquist v. City of Coral Gables, 323
F.Supp. 1161, 1163 (D. Montana 1971).* In order to
justify its interference with plaintiffs rights, D.C.
Transit, in an affidavit by Thomas S. Trimmer, Vice
President of Transportation Operations, asserts that
Regulation #70-67 was “...adopted in the interest of
morale of employees, so as to be properly presentable
to the public, and in the interest of safety... .” On the
other hand WMATA, in its Statement of Material Facts
as to Which There is No Genuine Issue, asserts that it
“...has no policy, regulation or rule concerning
appearance of employees.”

As to the first asserted justification, except in
unusual circumstances which are clearly not present,
this Court perceives no rational relation between the
safety of bus operations and the appearance of an
operator’s hair. As to the second, D.C. Transit’s
legimate [sic] interest in regulating the appearance of
its operator’s hair for the purpose of making them
“properly presentable to the public” is limited to those
situations when an operator’s hair will affect the
conduct of its business. Here D.C. Transit was
operating under an exclusive franchise and, in view of
contemporary hair styles, could have no concern that
its bus operators’ hair would affect the conduct of its

16b

business except in extreme cases. Nor has D. C. Transit
brought to the Court’s attention any credible authority
to support its contentions. Absent such a showing or
that any unusual conditions exist the regulation is
irrevelant to any legitimate interests of the defendants
and is violative of the employees’ personal rights. Under
these circumstances impairment of an employee’s right
to a personal determination of his appearance must be
based on an interest far more substantial than the
personal predelictions of management, employees, or
others as to what hair styles are “‘proper.”’ The desire of
an adult to fashion his facial hair is a personal matter
and the proscriptions of D.C. Transit, unrelated to
satisfactory job performance, are necessarily subject to
close judicial scrutiny.

Since there is no interest asserted by D.C. Transit
which is legally sufficient to sustain its infringement of
plaintiffs’ liberty to determine their appearance, Regula-
tion #70-67 and actions taken under its authority are
adjudged to be in violation of plaintiffs’ Fifth
Amendment rights.

Accordingly, partial summary judgment will be
entered in favor of the plaintiffs for declaratory and
injunctive relief. Summary judgment in favor of the
defendants will be denied. Plaintiffs shall submit an
appropriate order within five days.

The question of the damages, if any, to which
plaintiffs are entitled will be determined at a
subsequent date. The parties shall submit memoranda of
points and authorities on that question within twenty
days.

/s/ Barrington D. Parker

Barrington D. Parker
United States District Judge

17b
May 3, 1973

Copies to:

John H. Harman, Esquire
Attorney for Plaintiffs

962 Wayne Avenue, Suite 403
Silver Spring, Maryland 20910

Harold Smith, Esquire

Attorney for the Defendant, D. C.
Transit, Inc.

3600 M Street, N. W.

Washington, D. C. 20007

John Dennedy, Esquire
Attorney for the Defendant, Washington

Metropolitan Area Transit Authority
950 L’Enfant Plaza, S. W.
Washington, D. C. 20024

FOOTNOTES

1. WMATA was created in 1966 pursuant to the Washington
Metropolitan Area Transit Authority Compact, Act of
November 6, 1966, 80 Stat. 1324, D.C. Code §1-1431
(1967), and acquired certain of the assets of D.C. Transit on
January 14, 1973, pursuant to the National Capital Area
Transit Act of 1972, Act of October 21, 1972, 86 Stat. 999,
amending D.C. Code §1-1431 (1967). On March 12, 1973
WMATA was added as a party in this proceeding.

2. D.C. Transit Regulation #70-67 states:

(1) Employees must be clean and neat and operators
must be clothed in full regulation uniform.

18b

(2) Employees must be clean shaven (exceptions: a
moustache may be worn provided that it is neatly
trimmed, follows the contour of the upper lip
and does not exceed to a point lower than a
horizontal line projected from the bottom of the
lower lip; (a) a dickey (slang), a patch of hair
worn just below the center of the lower lip, may
be worn provided that it does not exceed 1/2” in
width, length and protrustion).

(3) Hair must be trimmed neatly. It must not be
allowed to cover the ears or extend over the neck
collar.

(4) Sideburns must be trimmed neatly and are not
to exceed a point lower than 1/2” below the
earlob [sic].

(5) Beards, goatees and any item not covered above
are not permissible.

3. Civil Rights Act of May 31, 1870, c. 114, §16, 16 Stat. 144,
Rev. Stat. §1977, 42 U.S.C. 1981 (1970); Ku Klux Klan Act
of 1871, Act of April 20, 1871, c. 22, §1, 17 Stat. 13, Rev.
Stat. §1979, 42 U.S.C. §1983 (1970); Civil Rights Act of
1964, Title VII, Act of July 2, 1964, §703, 78 STat. 255, 42
U.S.C. 2000e-2 (1970), as amended, Equal Employment
Opportunity Act of 1972, Act of March 24, 1972 §2 et seq.,
86 Stat. 103.

4. See also Olff v. East Side Union High School District, 404
U.S. 1042, 1044 (1972) (Douglas, J., dissenting from denial
of cert.).

[Caption Omitted in Printing]

ORDER

This cause having come on to be heard on the
motions of the defendants for summary judgment and

19b

the cross motion of the plaintiffs for summary
judgment, pursuant to Rule 56 of the Federal Rules of
Civil Procedure, and the Court having considered the
memoranda of points and authorities, affidavits and
argument of counsel in support thereof and in
opposition thereto, it is, this 15th day of May, 1973,

ORDERED that the motions of the defendants for
summary judgment be and hereby are denied; and it is

FURTHER ORDERED that the motion of the
plaintiffs for summary judgment be and hereby is
granted to the extent that:

(1) D.C. Transit System, Inc. Regulation #70-67 is
DECLARED to be an unconstitutional violation of the
rights of the plaintiffs under the Fifth Amendment;

(2) defendants are permanently ENJOINED from
enforcing Regulation #70-67; and

(3) defendant Washington Metropolitan Area Transit
Authority is ORDERED to reinstate the plaintiffs to
their former employment with full restoration of
seniority.

/s/ Barrington D. Parker
Barrington D. Parker
United States District Judge

Copies to:

John H. Harman, Esquire
962 Wayne Avenue #403
Silver Spring, Maryland 20910

Harold Smith, Esquire
3600 M Street, N. W.
Washington, D. C. 20007

20b

John Kennedy, Esquire
950 L’Enfant Plaza, S. W.
Washington, D.C. 20024

[Caption Omitted in Printing]

AMENDED ORDER

Upon consideration of the motion of the defendant,
Washington Metropolitan Area Transit Authority, for
relief from Order pursuant to Rule 60(b) of the Federal
Rules of Civil Procedure, and the Court having
considered the memoranda of points and authorities
submitted by the parties, it is, this 14th day of June,
1973,

ORDERED that the Order entered May 15, 1973 by
this Court is hereby amended by striking out
subparagraphs (1) and (2) of the Order and inserting in
lieu thereof the following:

“(1) Paragraphs two through five of D.C. Transit
System, Inc., Regulation #70-67 are
DECLARED to be an unconstitutional viola-
tion of the rights of the plaintiffs under the
Fifth Amendment;

(2) defendants are permanently ENJOINED from

enforcing paragraphs two through five of
Regulation #70-67; and”

/s/ Barrington D. Parker
Barrington D. Parker
United States District Judge

Ne

=

21b
[Certificate of Service Omitted in Printing]

[Caption Omitted in Printing]

ORDER

A Memorandum Opinion and an Order granting
partial summary judgment in favor of the plaintiffs
were entered in this case on May 3, 1973 and May 15,
1973, respectively. Defendant D.C. Transit System, Inc.
moved the Court, pursuant to 28 U.S.C. §1292(b), for
a finding that its Order involves a controlling question
of law as to which there is substantial ground for
difference of opinion and that an immediate appeal
from the Order may materially advance the ultimate
termination of the litigation. Upon consideration of the
motion of the defendant and the memoranda of points
and authorities submitted by the parties, the Court is
not of the opinion that an immediate appeal from the
Order may materially advance the ultimate termination
of this litigation. Accordingly, it is this 14th day of
June, 1973

ORDERED that the motion of the defendant, D. C.
Transit System, Inc. for a finding pursuant to 28 U.S.C.
§ 1292(b) be and hereby is denied.

/s/ Barrington D. Parker
Barrington D. Parker
United States District Judge

22b

[Certificate of Service Omitted in Printing]

[Caption Omitted in Printing]

POINTS AND AUTHORITIES

1. Gerald Brent Fagan vs. National Cash Register
Company, United States Court of Appeals, for the
District of Columbia Circuit, Case Number 71-1243.

/s/ Harold Smith
Harold Smith
Attorney for D. C. Transit
3600 M. Street, N.W.
Washington, D.C. 20007
965-9700

[Certificate of Service Omitted in Printing]

[Caption Omitted in Printing]

ORDER

The Court having considered the oral motion of
defendant, D. C. Transit System, Inc., joined in by
co-defendant, Washington Metropolitan Area Transit
Authority, to vacate its Order of June 14, 1973,
denying the motion of defendant, D. C. Transit System,
Inc. for a finding by the court that the Order
embracing the Court’s ruling in its Memorandum

—— —_

23b

Opinion involves a controlling question of law so that
an immediate interlocutory appeal could be taken under
the Provisions of Title 28 U.S.C.A., Section 1292(b), it
is by the Court this 19th day of July, 1973,

ORDERED, that the Order of the Court under date
of June 14, 1973 be and is hereby vacated.

/s/ Barrington D. Parker
JUDGE

[Certificate of Service Omitted in Printing]

[Caption Omitted in Printing]

ORDER

The Court having reconsidered the motion of
defendant, D. C. Transit System, Inc. for a finding in its
Order embodying its ruling in its Memorandum Opinion
that such Order involves a controlling question of law
as to which there is substantial ground for difference of
opinion and that immediate appeal from said Order
may materially advance the ultimate termination of this
litigation, it is by the Court this 19th day of July,
1973,

ORDERED, that it is the opinion of this Court that
its ruling in its Memorandum Opinion involves a
controlling question of law as to whieh there is
substantial ground for difference of opinion and that an
appeal from the Order of this Court embodying the
Court’s ruling in its Memorandum Opinion may

24b

materially advance the ultimate termination of this
litigation, pursuant to Title 28 U.S.C.A., Section
1292(b).

/s/ Barrington D. Parker
JUDGE

[Certificate of Service Omitted in Printing]

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_0647%3A1. Public record. Not legal advice.