Appendix — Brown v. D. C. Transit System, Inc.

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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 =e without due process of law; 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, compact 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(#) of Act Oct. 21, 1072,

Pub. L, 92-617, 86 Stat, 1000, amended articles XII and

XVI of title III of the Washington Metropolitan Area

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

ata nrice satisfactory to the Authority”.

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Page 117

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TITLE 1.—ADMINISTRATION

PREAMELE

The preamble to act Nov. 6, 1966, 80 Stat. 1824, Pub. L.

89-774, provided:

“Whereas Congress heretofore has declared in the Na-

tional Capital Transportation Act of 1960 (Public Law

86-660, 74 Stat. 637 (D.C. Code § 1~-1401 et #eq.)) and in

the National Capital Transportation Act of 1065 (Public

Law 869-173, 79 Stat. 663 (D.C, Code § 1~1421 et #eq.)) that

® coordinated system of rail rapid transit, bus transporta-

tion service, and highways is essential in the National

Capital Region for the 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 ea system

should be developed cooperatively by the Federal, State,

and local governments of the National 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, a8 amended by Public Law 87-767, 76 Stat. 764)

[D.C, Code § 11-1410 et seq.]), by adding thereto a title

TTI 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.).

79-900 O—73—vol. 1———14

§ 1-1431

Pee a as

— ee

Bi EED THROUGH

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WASHINGTON MPTTROPOLITAN AREA

Transit AvuTMoRITY COMPACT

The Washington Metropolitan Area Transit Authority

Compact, referred to in this section, and constituting title

II!'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 I

“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) ‘Signatory’ means the State of Maryland, the

Commonwealth of Virginia and the District of Columbia;

“(e) ‘State’ 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 all 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 mail] between

such points, and charter service which originates within

the Zone but does not include taxicab service or individ-

ual-ticket-sales sightseeing operations; and

“(h) ‘WMATC’ means Washington Metropolitan Area

Transit Commission.

“ARTICLE 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,

ORO ER RTA BE MPA A INES SOMERS OP & PON gee

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

transportation, (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 legislation.

“ARTICLE IIT

“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

“4. 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 shall 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, es

Page 118

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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 office each

Director and alternate director shall 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 shal] provide:

Oe, cncecsansseu , hereby solemnly swear (or affirm)

that I will support and defend the Constitution of the

United States and the Constitution and Laws of the state

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 Iam

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

“?. The Board shall provide for its 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 that‘the 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 Actions by the Board

“8. (a) Four Directors or alternates consisting of at

least one Director or alternate appointed from each Signa-

tory, shall constitute a 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

4 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 shal! 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 &

finding that such acceleration is required for the proper

and timely performance of its functions.

“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 shal) 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 basis and may be compensated on

@ salary or fee basis, as 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 eo, 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

Board may be signed by the general manager or by

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 euch 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, promotion

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.

~~ . 1

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“(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 sea] 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, employmente 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 regard to

the laws of any of the signatories;

“(h) Establish, in its discretion, a personnel system

based on merit and fitness and, subject to eligibility,

8a

participate in the pension and retirement plans of any

signatory, or political subdivision or agency thereof, upon

terms and conditions mutually acceptable;

“(1) Contract for of 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 iriformation 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

“18. (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

BLEED

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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 anc 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

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“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 governing 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 representing 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 plan,

amendment or revision, ehall be kept at the office of the

Board and 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 to 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 shall 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 it deems appropriate and such Changes may

be made without further hearing.

“ArTictz 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 National Capita] Transportation Act

of 1960 (74 Stat. 537), 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

B!| FEED THROUGH

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

amount 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 shatl constitute a proposal

to the interested governments for financial participation

and shall not impose any obligation on any government

and such oblige ions 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-

portation 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 governments, 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 General] 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

“ae 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 appropria-

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 ia 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 a mass

transit and financing plan, including all engineering,

financial, 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 Bureau 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-

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sonal property and al] other assets, located within the

Zone, whether in operation or unde! 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 Columbia, as may be required;

provided, however, that if such acquisition imposes or

may impose any further or additional obligation or

liability 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 acqulisi-

tion until any such affected contract has been appro-

priately amended.

“(b) For such purpose, the Authority is authorized to

assume al] 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 shall 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 shall not construct or acquire any of the

transit facilities specified in a mass transit plan adopted

pursuant to the provisions of Article VI of this Title, or

in any alteration, revision or amendment thereof, nor

make any commitments or incur any obligations with

respect thereto until funds are available therefor.

“ARTICLE VIII

“BUDGET

“Capital Budget

“23. The Board shall annually adopt a capitai budget,

including all capital projects it proposes to undertake or

continue during the budget period, containing a state-

ment of the estimated cost of each project and the method

of financing thereof.

“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,

a a a a 2

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

balanced 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 budgete, 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

“98. The purposes of this Title shall include, without

limitation, all costs of any project or facility or any part

thereof, including interest during a period of construction

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and for a period not to exceed two years thereafter and

any incidental expenses (legal, engineering, fiscal, finan-

cial, consultant and other expenses) connected with is-

suing and disposing of the bonds; all amounts required

for the creation of an operating fund, construction fund,

reserve fund, sinking fund, or other special fund; all other

expenses connected with administration, the planning,

design, acquisition, construction, completion, improve-

ment or reconstruction of any facility or any part thereof;

and reimbursement of advances by the Board or by others

for such purposes and for working capital.

“Credit Excluded; Officers, State, Political Subdivisions

and Agencies

“29. The Board shall have no power to pledge the credit

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

governments and agencies; provided, however, that the

bonds may be underwritten in whole or in part as to

principal and interest by the United States, or by any

political subdivision or agency of any signatory; pro-

vided, further, that any bonds underwritten in whole or

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 6hall be liable personally on the bonds

of the Authority or be subject to any personal liability or

accountability by reason of the issuance thereof.

“Funding 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 (ii) the failure to com-

plete any part of the project for which bonds ere au-

thorized to be issued. The Authority may issue bonds

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in one or more series and may provide for or more

consolidated bond issues, 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 Indentures 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, as the Board

may deem neceesary 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 acquisi-

tion of other facilities; the issuance of additional bonds

or other indebtednegs; 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.

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“Maximum Maturity

“32. No bond or its terms shall mature in more than

fifty years from its own date and in the event any author-

ized issue 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 al] 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 appointed by the Board; provided, however, that

one of such signatures shall be manual. If any of 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 powe out of any funds

available therefor to purchase its bonds and may hold,

cancel or resell such bonds.

“Bale

“39. The Board may fix terms and conditions for the

sale or other disposition of any authorized issue of bonds.

The Board may sell bonds at less than their par or face

value but no issue of bonds may be sold at an aggregate

price below the par or face value thereof if such sale

would result in a net interest cost to the Authority

calculated upon the entire issue so sold in excess of the

applicable rate determined by the Board, payable semi-

annually, computed with relation to the absolute matu-

rity of the bonds according to standard tables of bond

values, deducting the amount of any premium to be paid

18a

on the redemption of any bonds prior to maturity. All

bonds issued and sold pursuant to this title may be sold

in such manner, either at public or private sale, as the

Board shall determine.

“Negotiability

“40. All bonds issued under the provisions of this Title

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

date 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

7

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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 proceeds received from

the sale of bonds; or (2) by action or suit in a court

of competent jurisdiction of any signatory party require

the Authority to account as if it were the trustee of an

express trust, or enjoin any acts or things which may

be unlawful or in violation of the rights of the holders

of the bonds. The enumeration of such rights and

remedies does not, however, exclude the exercise or pros-

ecution of any other rights or remedies available to the

holders of bonds. ; : ’

at “ARTICLE X '

‘

“£QUIPMENT TRUST CERTIFICATES

“Power

“46. The Board shall have power to execute agreements,

leases and equipment trust certificates with respect to

the purchase of facilities or equipment such as cars,

trolley buses and motor buses, or other craft, in the

form customarily used in such cases and appropriate to

effect such purchase, and may dispose of such equip-

ment trust certificates in such manner as it may deter-

mine to be for the best interests of the Authority. Each

vehicle covered by an equipment trust certificate shall

have the name of the owner or lessor plainly marked

upon both sides thereof, followed by the words ‘Owner

and Lessor’.

“Payments

“47. All monies required to be paid by the Authority

under the provisions of such agreements, leases and

equipment trust certificates shall be payable solely from

the revenue to be derived from the operation of the

transit system or from such grants, loans, appropriations

or other revenues, as may be available to the Board

under the provisions of this Title. Payment for such

facilities or equipment, or rentals thereof, may be made

in installments, and the deferred installments may be

evidenced by equipment trust certificates as aforesaid,

and title to such facilities or equipment may not vest in

the Authority until the equipment trust certificates are

paid.

20a

“Procedure

“48. The agreement to purchase facilities or equip-

ment by the Board may direct the vendor to sell and

assign the equipment to a bank or trust company, duly

authorized to transact business in any of the signatory

States, or to the Housing and Home Finance Adminis-

trator, as trustee, lessor or vendor, for the benefit and

security of the equipment trust certificates and may

direct the trustee to deliver the facilities and equip-

ment to one or more designated officers of the Board

and may authorize the trustee simultaneously therewith

to execute and deliver a lease of the facilities or equip-

ment to the Board.

“Agreements and Leases

“49. The agreements and leases shall be duly acknowl-

edged before some person authorized by law to take

acknowledgements of deeds and in the form required

for acknowledgement of deeds and such agreements,

leases, and equipment trust certificates shall be authorized

by resolution of the Board and shall contain such cov-

enants, conditions and provisions as may be deemed nec-

essary or appropriate to insure the payment of the

equipment trust certificates from the revenues to be

derived from the operation of the transit system and

other funds.

“The covenants, conditions and provisions of the agree-

ments, leases and equipment trust certificates shall

not conflict with any of the provisions of any resolution

or trust agreement securing the payment of bonds or

other obligations of the Authority then outstanding or

conflict with or be in derogation of the rights of the

holders of any such bonds or other obligations.

“Law Governing

“60. The equipment trust certificates issued hereunder

shall be governed by Laws of the District of Columbia

and for this purpose the chief place of business of the

Authority shall be considered to be the District of Colum-

bia. The filing of any documents required or permitted

to be filed shall be governed by the — of the District

of Columbia.

“ARTICLE XI :

“OPERATION OF FACILITIES

“Operation by Contract or Lease

“61. Any facilities and propérties owned or controlled

by the Authority may be operated by the Authority di-

rectly or by others pursuant to-contract or lease as the

Board may determine. _— ,

“The Operating Contract ;

“52. Without limitation upon the right of the Board

to prescribe such additional terms and provivions as it

may deem necessary and appregee, the operating con-

tract shall;

“(a) specify the services and functions to be performed

by the Contractor;

“(b) provide that the Contractor shall hire, supervise

and control all personnel required to perform the services

2la

and functions assumed by it under the operating con-

tract and that all such personne] shall be employees of

the Contractor and not of the Authority;

“(c) require the Contractor to assume the obligations of

the labor contract or contracts of any transit company

which may be acquired by the Authority and assume the

pension obligations of any such transit company;

“(a@) require the Contractor to comply in all respects

with the labor policy set forth in Article XIV of this

Title; .

“(e) provide that no transfer of ownership of the capi-

tal stock, securities or interests in any Contractor, whose

principal business is the operating contract, shall be made

without written approval of the Board and the certificates

or other instruments representing such stock, securities

or interest shall contain a statement of this restriction;

“(f) provide that the Board ehall have the sole au-

thority to determine the rates or fares to be charged, the

routes to be operated and the service to be furnished;

“(g) specify the obligations and liabilities which are

to be assumed by the Contractor and those which are to

be the responsibility of the Authority;

“(h) provide for an annual audit of the books and

accounts of the Contractor by an independent certified

public accountant to be selected by the Board and for

such other audits, examinations and investigations of the

books and records, procedures and affairs of the Con-

tractor at such times and in such manner as the Board

shall require, the cost of such audits, examinations and

investigations to be borne as agreed by the parties in the

operating contract; and

“(1) provide that no operating contract shall be en-

tered into for a term in excess of five years; provided,

that any such contract may be renewed for successive

terms, each of which shall not exceed five years. Any

such operating contract shall be subject to termination

by the Board for cause only.

“Compensation for Contractor

“53. Compensation to the Contractor under the operat-

ing contract may, in the discretion of the Board, be in

the form of (1) a fee paid by the Board to the Con-

tractor for services, (2) a payment by the Contractor to

the Board for the right to operate the system, or (3)

such other arrangement as the Board may prescribe;

provided, however, that the compensation shall bear a

reasonable relationship to the benefits to the Authority

and to the estimated costs the Authority would incur in

directly performing the functions and duties delegated

under the operating contract; and provided, further, that

no such contract shall create any right in the Contractor

(1) to make or change any rate or fare or alter or change

the service specified in the contract to be provided or (2)

to seek judicial relief by any form of original action,

review or other proceedings from any rate or fare or

service prescribed by the Board. Any assertion, or at-

tempted assertion, by the Contractor of the right to

make or change any rate or fare or service prescribed

by the Board shall constitute cause for termination of

the operating contract. The operating contract may pro-

vide incentives for efficient and economical management.

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“Selection of Contractor

“54. The Board shall enter into an operating contract

only after formal advertisement and negotiations with all

interested and qualified parties, including private transit

companies rendering transit service within the Zone;

provided, however, that, if the Authority acquires transit

facilities from any agency of the federal or District of

Columbia governments, in accordance with the provisions

of Article VII, Section 20 of this Title, the Authority

shal] assume the obligations of any operating contract

which the transferor agency may have entered into.

“ARTICLE XII

“COORDINATION OF PRIVATE AND PUBLIC FACILITIES

“Declaration of Policy

“65. It is hereby declared that the interest of the public

in efficient and economical transit service and in the

financial well-being of the Authority and of the private

trangit companies requires that the public and private

segments of the regional transit system be operated, to

the fullest extent possible, as a coordinated system with-

out unnecessary duplicating service.

“Implementation of Policy

“66. In order to carry out the legislative policy set forth

in Section 55 of this Article XZ

“(a) The Authority—

“(1) except as herein provided, shall not, directly or

through a Contractor, perform transit service by bus

or similar motor vehicles;

(2) shall, in cooperation with the private carriers

and WMATC, coordinate to the fullest extent prac-

ticable, the schedules for service performed by its

facilities with the schedules for service performed by

private carriers; and

“(3) ehall enter into agreements with the private

carriers to establish and maintain, subject to approval

by WMATC, through routes and joint fares and provide

for the division thereof, or, in the absence of such agree-

ments, establish and maintain through routes and

joint fares in accordance with orders issued by WMATC

directed to the private carriers when the terms and

conditions for such through service and joint fares are

acceptable to it.

“(b) The WMATC, upon application, complaint, or upon

its own motion, shall—

“(1) direct private carriers to coordinate their sched-

ules for service with the schedules for service performed

by facilities owned or controlled by the Authority;

“(2) direct private carriers to improve or extend any

existing services or provide additional service over addl-

tional routes;

“(3) authorize a private carrier, pursuant to agree-

ment between said carrier and the Authority, to estab-

lish and maintain through routes and joint fares for

transportation to be rendered with facilities owned or

controlled by the Authority if. after hearing held upon

reasonable notice, WMATC finds that such through

A

Fis

B!| EED THROUGH

23a

routes and joint fares are required by the public inter-

est; and

“(4) im the absence of such an agreement with the

Authority, direct a private carrier to establish and

maintain through routes and joint fares with the Au-

thority, if, after hearing held upon reasonable notice,

WMATC finds that such through service and joint fares

are required by the public interest; provided, however,

that no such order, rule or regulation of WMATC shall

be construed to require the Authority to establish and

maintain any through route and joint fare.

“(c) WMATC shall not authorize or require a private

carrier to render any service, including the establishment

or continuation of a joint fare for a through route serv-

ice with the Authority which is based on a division there-

of between the Authority and private carrier which does

not provide a reasonable return to the private carrier,

unless the carrier is currently earning a reasonable return

on its operation as a whole in performing transportation

subject to the jurisdiction of WMATC. In determin-

ing the issue of reasonable return, WMATC shall take

into account any income attributable to the carrier,

or to any corporation, firm or association owned in whole

or in part by the carrier, from the Authority whether by

way of payment for services or otherwise.

“(d) If the WMATC is unable, through the exercise of

its regulatory powers over the private carriers granted in

paragraph (b) hereof or otherwise, to bring about the

requisite coordination of operations and service between

the private carriers and the Authority, the Authority

may in the situations specified in paragraph (b) hereof,

cause such transit service to be rendered by its Con-

tractor by bus or other motor vehicle, as it shell deem

necessary to effectuate the policy set forth in Section 55

hereof. In any such situation, the Authority, in order

to encourage private carriers to render bus service to the

fullest extent practicable, may, pursuant to agreement,

make reasonable subsidy payments to any private carrier.

“(e) The Authority may acquire the capital stock or

transit facilities of any private transit company and may

perform transit service, including service by bus or similar

motor vehicle, with transit facilities so acquired, or with

transit facilities acquired pursuant to article VII, section

20. Upon acquisition of the capital stock or the transit

facilities of any private transit company, the Authority

shall undertake the acquisition as soon as possible of the

capital stock or the transit facilities of each of the other

private transit companies within the zone requesting such

acquisition. Lack of such request, however, shall not be

construed to preclude the Authority from acquiring the

capital stock or the transit facilities of any such company

pursuant to section 82 of article XVI.

“Rights of Private Carriers Unaffected

“57. Nothing in this Title shall restrict or limit such

rights and remedies, if any, thet any private carrier may

have against the Authority arising out of acts done or

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24a

actions taken by the Authority hereunder. In the event

any court of competent jurisdiction shall determine that

the Authority has unlawfully infringed any rights of

any private carrier or otherwise caused or permitted any

private carrier to suffer legally cognizable injury, damages

or harm and shall award a judgment therefor, such judg-

ment shall constitute a lien against any and all of the

assets and properties of the Authority.

“Financial Assistance to Private Carriers

“68. (a) The Board may accept grants from and enter

into loan agreements with the Housing and Home Fi-

nance Administrator, pursuant to the provisions of the

Urban Maas Transportation Act of 1964 (78 Stat. 302),

or with any successor agency or under any law of similar

purport, for the purpose of rendering financial essistance

to private carriers.

“(b) An application by the Board for any such grant

or loan shall be based on and supported by a report from

WMATC setting forth for each private carrier to be as-

sisted (1) the equipment and facilities to be acquired,

constructed, reconstructed, or improved, (2) the service

proposed to be rendered by such equipment and facilities,

(3) the improvement in service expected from such fa-

cilities and equipment, (4) how the use of such facilities

and equipment will be coordinated with the transit fa-

cilities owned by the Authority, (5) the ability of the

affected private carrier to repay any such loans or grants

and (6) recommend terms for any such loans or grants.

“(c) Any equipment or facilities acquired, constructed,

reconstructed or improved with the proceeds of such

grants or loans shall be owned by the Authority and may

be made available to private carriers only by lease or

other agreement which contain provisions acceptable to

the Housing and Home Finance Administrator assuring

that the Authority will have satisfactory continuing con-

trol over the use of such facilities and equipment.

“ARTICLE XITI

“JURISDICTION; RATES AND SERVICE

“Washington Metropolitan Area Transit Commission

“59. Except as provided herein, this Title shall not af-

fect the functions and jurisdiction of WMATC, as granted

by Titles I and I of this Compact, over the transporta-

tion therein specified and the persons engaged therein

and the Authority shall have no jurisdiction with respect

thereto.

“Public Facilities

“60. Service performed by transit facilities owned or

controlled by the Authority, and the rates and fares to

be charged for such service, shall be subject to the sole

and exclusive jurisdiction of the Board and, notwith-

standing any other provision in this Compact contained,

WMATC shall have no authority with respect thereto, or

with respect to any contractor in connection with the

operation by it of transit facilities owned or controlled

25a

by the Authority. The determinations of the Board

with respect to such matters shall not be subject to ju-

dicial review nor to the processes of any court.

“Standards

“61. Insofar as practicable, and consistent with the

provision of adequate service eat reasonable fares, the rates

and fares and service shall be fixed by the Board so

as to result in revenues which will:

“(@) pay the operating expenses and provide for re-

pairs, maintenance and depreciation of the transit system

owned or controlled by the Authority;

“(b) provide for payment of all principal and interest

on outstanding revenue bonds and other obligations and

for payment of all amounts to sinking funds and other

funds as may be required by the terms of any indenture

or loan agreement;

“(c) provide for the purchase, lease or acquisition of

rolling stock, including provisions for interest, sinking

funds, reserve funds, or other funds required for payment

of any obligations incurred by the Authority for the

acquisition of rolling stock; and

“(d) provide funds for any purpose the Board deems

necessary and desirable to carry out the purposes of this

Title.

“Hearings

“62. (a) The Board shall not make or change any

fare or rate, nor establish or abandon any service except

after holding a public hearing with respect thereto.

“(b) Any signatory, any political subdivision thereof,

any agency of the federal government and any person,

firm or association served by or using the transit facilities

of the Authority and any private carrier may file a request

with the Board for a hearing with respect to any rates

or charges made by the Board or any service rendered

with the facilities owned or controlled by the Authority.

Such request shall be in writing, shall state the matter

on which a hearing is requested and shall set forth clearly

the matters and things on which the request relies. As

Promptly as possible after such a request is filed, the

Board, or such officer or employee as it may designate,

shall confer with the protestant with respect to the mat-

ters complained of. After such conference, the Board, if it

deems the matter meritorious and of general significance,

may call a hearing with respect to such request.

“(c) The Board shall give at least thirty days’ notice

for all hearings. The notice shall be given by publication

in @ newspaper of daily circulation throughout the Zone

and such notice shall be published once a week for two

successive weeks. The notice shall start with the day

of first publication. In addition, the Board shall post

notices of the hearing in its offices, all stations and termi-

nals, and in all of its vehicles and rolling stock in revenue

service.

“(d) Prior to calling a hearing on any matter specified

in this section, the Board shall prepare and file at its

main office and keep open for public inspection its report

relating to the proposed action to be considered et such

hearing. Upon receipt by the Board of any report sub-

26a

mitted by WMATC, in connection with a matter set for

hearing, pursuant to the provisions of Section 63 of this

Article XII, the Board shall file such report at its main

office and make it available for public inspection. For

hearings called by the Board pursuant to paragraph (b),

above, the Board also shall cause to be lodged and kept

open for public inspection the written request upon

which the hearing is granted and all documents filed in

support thereof.

“Reference of Matters to WMATC

“63. To facilitate the attainment of the public policy

objectives for operation of the publicly and privately

owned or controlled transit facilities as stated in Article

XII, Section 55, prior to the hearing provided for by Sec-

tion 62 hereof—

“(a) The Board shall refer to WMATC for its consid-

eration and recommendations, any matter which the

Board considers may affect the operation of the publicly

and privately owned or controlled transit facilities as a

coordinated regional transit system and any matter for

which the Board has called a hearing, pursuant to Section

62 of this Article XIII, except that temporary or emer-

gency changes in matters affecting sevice shall not

be referred; and

“(b) WMATC, upon such reference of any matter to

it, shall give the referred matter preference over any

other matters pending before it and shall, as expeditiously

as practicable, prepare and transmit its report thereon to

the Board. The Board may request WMATC to reconsider

any part of ita report or to make any supplemental reports

it deems necessary. All of such reports shall be advisory

only.

“(c) Any report submitted by WMATC to the Board

shall consider, without limitation, the probable effect

of the matter or proposal upon the operation of the

publicly and privately owned or controlled transit facili-

ties as a coordinated regional system, passenger move-

ments, fare structures, service and the impact on the

revenues of both the public and private facilities.

“Artice XIV

“LABOR POLICY

“Construction

“64. The Board shal] take such action as may be neces-

sary to insure that all laborers and mechanics employed

by contractors or subcontractors in the construction,

alteration or repair, including painting and decorating,

of projects, buildings and works which are undertaken

by the Authority or are financially assisted by it, shall

be paid wages at rates not less than those prevailing on

similar construction in the locality as determined by

the Secretary of Labor in accordance with the Davis-

Bacon Act, as amended (40 U.S.C. 276a—276a-5), and

every such employee shall receive compensation at a rate

not less than one and one-half times his basic rate of pay

for all hours worked in any workweek in excess of eight

B!

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27a

hours in eny workday or forty hours in any workweek, as

the case may be. A provision stating the minimum wages

thus determined and the requirement that overtime be

p3id as above provided shall be set out in each project

advertisement for bids and in each bid proposal form

and shall be made a part of the contract covering the

project, which contract shall be deemed to be a contract

of the character specified in Section 108 of the Contract

Work Hours Standards Act (76 Stat. 357), as now or as

may hereafter be in effect. The Secretary of Labor shall

have, with respect to the administration and enforce-

ment of the labor standards specified in this provision,

the supervisory, investigatory and other authority and

functions set forth in Reorganization Plan No. 14 of 1950

(15 F.R. 3176, 64 Stat. 1267, 6 U.S.C. 133z-15), and sec-

tion 2 of the Act of June 13, 1934, ag amended (48 Stat.

948, as amended; 40 U.S.C. 276(c)). The requirements

of this section shall also be applicable with respect to the

employment of laborers and mechanics in the construc-

tion, alteration or repair, including painting and deco-

rating, of the transit facilities owned or controlled by the

Authority where such activities are performed by a Con-

tractor pursuant to agreement with the operator of such

facilities.

“Equipment and Supplies

“65. Contracts for the manufacture or furnishing of

materials, supplies, articles and equipment shall be sub-

ject to the provisions of the Walsh-Healey Public Con-

tracts Act (41 US.C. 35 et seq.), as now or as may

hereafter be in effect.

“Operations

“66. (a) The rights, benefits, and other employee pro-

tective conditions and remedies of section 13(c) of the

Urban Mass Transportation Act of 1964, as amended (49

U.S.C. 1609(c)), as determined by the Secretary of Labor

shall apply to the operation by the Washington Metro-

politan Area Transit Authority of any mass transit facili-

ties owned or controlled by it and to any contract or other

arrangement for the operation of transit facilities. When-

ever the Authority shall operate any transit facility or

enter into any contractual or other arrangements for the

operation of such transit facility the Authority shall ex-

tend to employees of affected mass transportation systems

first opportunity for transfer and appointment as em-

ployees of the Authority in accordance with seniority,

in any nonsupervisory job in respect to such operations for

which they can qualify after a reasonable training period.

Such employment shall not result in any worsening of the

employee's position in his former employment nor any loss

of wages, hours, working conditions, seniority, fringe bene-

fits and rights and privileges pertaining thereto.

“(b) The Authority shall deal with and enter into writ-

ten contracts with employees as defined in section 152 of

title 29, United States Code, through accredited represent-

atives of such employees or representatives of any labor

organization authorized to act for such employees con-

cerning wages, salaries, hours, working conditions, and

pension or retirement provisions.

28a

“(c) In case of any labor dispute involving the Author-

ity and such employees where collective bargaining does

not result in agreement, the Authority shall submit such

dispute to arbitration by a board composed of three per-

s0n8s, one appointed by the Authority, one appointed by

the labor organization representing the employees, and

& third member to be agreed upon by the lebor organiza-

tion and the Authority. The member agreed upon by the

labor organization and the Authority shall act as chair-

man of the board. The determination of the majority of

the board of arbitration, thus established shall be final

and binding on all matters in dispute. If after a period of

ten days from the date of the appointment of the two ar-

bitrators representing the Authority and the labor organi-

zation, the third arbitrator has not been selected, then

either arbitrator may request the Federal Mediation and

Conciliation Service to furnish a list of five persons from

which the third arbitrator shall be selected. The arbitra-

tors appointed by the Authority and the labor organiza-

tion, promptly after the receipt of such list shall deter-

mine by lot the order of elimination, and thereafter each

shall in that order alternately eliminate one name until

only one name remains. The remaining person on the list

shall be the third arbitrator. The term ‘labor dispute’

shall be broadly construed and shall include any con-

troversy concerning wages, salaries, hours, working con-

ditions, or benefits including health and welfare, sick

leave, insurance or pension or retirement provisions but

not limited thereto, and including any controversy con-

cerning any differences or questions that may arise be-

tween the parties including but not limited to the mak-

ing or maintaining of collective bargaining agreements,

the terms to be included in such agreements, and the

interpretation or application of such collective bargaining

agreements and any grievance that may arise and ques-

tions concerning representation. Each party shall pay

one-half of the expenses of such arbitration.

“(d) The Authority is hereby authorized and empow-

ered to establish and maintain a system of pensions and

retirement benefits for such officers and employees of the

Authority as may be designated or described by resolution

of the Authority; to fix the terms of and restrictions on .

admission to such system and the classifications therein;

to provide that persons eligible for admission in such

pension system shall not be eligible for admission to, or

receive any benefits from, any other pension system (ex-

cept social security benefits), which is financed or funded,

in whole or in part, directly or indirectly by funds paid or

appropriated by the Authority to such other pension sys-

tem, and to provide in connection with such pension sys-

tem, a system of benefits payable to the beneficiaries and

dependents of any participant in such pension system after

the death of such participant (whether accidental or

otherwise, whether occurring in the actual performance of

duty or otherwise, or both) subject to such exceptions,

conditions, restrictions and classifications as may be pro-

vided by resolution of the Authority. Such pension system

shall be financed or funded by such means and in such

29a

manner as may be determined by the Authority to be eco-

nomically feasible. Unless the Authority shall otherwise

determine, no officer or employee of the Authority and no

beneficiary or dependent of any such Officer or employee

shall de eligible to receive any pension or retirement or

other benefits both from or under any such pension sys-

tem and from or under any pension or retirement system

established by an acquired transportation system or estab-

lished or provided for, by or under the provisions of any

collective bargaining agreement between the Authority

and the representatives of its employees.

“(e) Whenever the Authority acquires existing transit

facilities from a public or privately owned utility either in

proceeding by eminent domain or otherwise, the Authority

shall assume and observe all existing labor contracts and

pension obligations. When the Authority acquires an

existing transportation system, all employees who are nec-

essary for the operation thereof by the Authority shall be

transferred to and appointed as employees of the Author-

ity, subject to all the rights and benefits of this title. These

employees shall be given seniority credit and sick leave,

vacation, insurance and pension credits in accordance

with the records or labor agreements from the acquired

transportation system. Members and beneficiaries of any

pension or retirement system or other benefits established

by the acquired transportation system shall continue to

have rights, privileges, benefits, obligations and status

with respect to such established system. The Authority

shall assume the obligations of any transportation system

acquired by it with regard to wages, salaries, hours, work-

ing conditions, sick leave, health and welfare and pension

or retirement provisions for employees. It shall assume the

provisions of any collective bargaining agreement between

such acquired transportation system and the representa-

tives of its employees. The Authority and the employees,

through their representatives for collective bargaining

purposes, shall take whatever action may be necessary to

have pension trust funds presently under the joint con-

trol of the acquired transportation system and the par-

ticipating employees through their representative trans-

ferred to the trust fund to be established, maintained and

administered jointly by the Authority and the participat-

ing employees through their representatives. No employee

of any acquired transportation system who is transferred

to e position with the Authority shall by reason of such

transfer be pleced in any worse position with respect to

workmen's compensation, pension, seniority, wages, sick

leave, vacation, health and welfare insurance or any other

benefits, than he enjoyed as an employee of such acquired

transportation system.

“ARTICLE XV

“RELOCATION ASSISTANCE

“Relocation Program and Payments

“67. Section 7 of the Urban Mass Transportation Act

.of 1964, and as the same may from time to time be

amended, and all regulations promulgated thereunder,

are hereby made applicable to individuals, families, busi-

Page 127

30a

ness concerns and nonprofit organizations displaced

from real property by actions of the Authority without

regard to whether financial assistance is sought by or

extended to the Authority under any provision of that

Act; provided, however, that in the event real property

is acquired for the Authority by an agency of the federal

government, or by a State or local agency or instrumen-

tality, the Authority is authorized to reimburse the

acquiring agency for relocation payments made by it.

“Relocation of Public or Public Utility Facilities

“68. Notwithstanding the provisions of Section 67 of

this article XV, any highway or other public facility or

any facilities of a public utility company which will be

dislocated by reason of a project deemed necessary by

the Board to effectuate the authorized purposes of this

Title shall be relocated if such facilities are devoted to

a public use, and the reasonable cost of relocation, if

substitute facilities are necessary, shall be paid by the

Board from any of its monies.

“ARTICLE XVI

“GENERAL PROVISIONS

“Creation and Administration of Funds

“69. (a) The Board may provide for the creation and

administration of such funds as may be required. The

funds shall be disbursed in accordance with rules estab-

lished by the Board and all payments from any funds

shall be reported to the Board. Monies in such funds and

other monies of the Authority shall be deposited, as di-

rected by the Board, in any state or national bank

located in the Zone having a total paid-in capital of at

least one million dollars ($1,000,000). The trust depart-

ment of any such state or nationa] bank may be desig-

nated as a depos:ary to receive any securities acquired or

owned by the Authority. The restriction with respect

to paid-in capital may be waived for any such bank which

agrees to pledge federal securities to protect the funds

and securities of the Authority in such amounts an pur-

suant to such arrangements as may be acceptable to the

Board.

“(b) Any monies of the Authority may, in the discre-

tion of the Board and subject to any agreement or

covenant between the Authority and the holders of any

of its obligations limiting or restricting classes of invest-

ments, be invested in bonds or other obligations of, or

gusranteed as to interest and principal by, the United

States, Meryland, Virginia or the political subdivisions

or agencies thereof.

“Annual Independent Audit

“710. (a) As soon as practical after the closing of the

fiscal year, an audit shall be made of the financial ac-

accounts of the Authority. The audit shall be made by

qualified certj/fied public accountants selected by the

Board, who shall have no personal interest direct or

indirect in the financial affairs of the Authority or any

of its officers or employees. The report of audit shall be

}

Ri FEN THR OLIGH

3la

prepared in accordance with generally accepted auditing

principles ana shall be filled with the Chairman and other

officers as the Board shall direct. Copies of the report

shall be distributed to each Director, to the Congress,

to the Board of Commissioners of the District of Colum-

bia, to the Governors of Virginia and Maryland, to the

Washington Suburban Transit Commission, to the

Northern Virginia Transportation Commission and to the

governing bodies of the political subdivisions located

within the Zone which are parties to commitments for

participation in the financing of the Authority and shall

be made available for public distribution.

“(b) The financial transactions of the Board shal] be

subject to audit by the United States Genera’ Account-

ing Office in accordance with the principles und proce-

dures applicable to commercial corporate .ransactions

and under such rules and regulations as may be pre-

scribed by the Comptroller General of the ‘Jnited States.

The audit shall be conducted at the place co: places where

the accounts of the Board are kept.

“(c) Any Director, officer or employee wl.o shall refuse

to give all required azgsistance and information to the

accountants selected by the Board or who shall refuse

to submit to them for examination such books, docu-

ments, records, files, accounts, papers, things or property

as may be requested shall, in the discretion of the Board

forfeit his office.

“Reports

“71. The Board shall make and publish an annual

report on its programs, operations and finances, which

shall be distributed in the same manner provided by

Section 70 of this Article XVI for the report of annual

audit. It may also prepare, publish and distribute such

other public reports and informational materials as it

may deem necessary or desirable.

“Insurance

“72. The Board may self-insure or purchase insurance

and pay the premiums therefore against loss or damage

to any of its properties; against liability for injury to

persons or property; and against loss of revenue from

any cause whatsoever. Such insurance coverage shall be

in such form and amount as the Board may determine,

subject to the requirements of any agreement arising out

of issuance of bonds or other obligations by the Authority.

“Purchasing

“73. Contracts for the construction, reconstruction or

improvement of any facility when the expenditure re-

quired exceeds ten thousand dollars ($10,000) and con-

tracts for the purchase of supplies, equipment and mate-

rials when the expenditure required exceeds two thousand

five hundred dollars ($2,500) shall be advertised and let

upon sealed bids to the lowest responsible bidder. Notice

requesting such bids shall be published in a manner rea-

sonably likely to attract prospective bidders, which publi-

cation shall be made at least ten days before bids are

received and in at least two newspapers of general circula-

tion in the Zone. The Board may reject any and all bids

and readvertise in its discretion. If after rejecting bids

RRR ET ee PR RP

32a

the Board determines and resolves that, in its opinion, the

supplies, equipment and materials may be purchased at

a lower price in the open market, the Board may give each

responsible bidder an opportunity to negotiate a price and

may proceed to purchase the supplies, equipment and ma-

terials in the open market at a negotiated price which is

lower than the lowest rejected bid of a responsible bid-

der, without further observance of the provisions requir-

ing bids or notice. The Board shall adopt rules and

regulations to provide for purchasing from the lowest

responsible bidder when sealed bids, notice and publica-

tion are not required by this section. The Board may

suspend and waive the provisions of this section requiring

competitive bids whenever: .

“(a) the purchase is to be made from or the contract is

to be made with the federal or any State government or

any agency or political subdivision thereof or pursuant

to any open end bulk purchase contract of any of them;

“(b) the public exigency requires the immediate de-

livery of the articles;

“(c) only one source of supply is available; or

“(d) the equipment to be purchased is of a technical

nature and the procurement thereof without advertising

is necessary in order to assure standardization of equip-

ment and interchangeability of parts in the public

interest.

“Rights of Way

“74. The Board is authorized to locate, construct and

maintain any of its transit and related facilities in, upon,

over, under or across any streets, highways, freeways,

bridges and any other vehicular facilities, subject to the

applicable lawg governing such use of such facilities by

public agencies. In the absence of such laws, such use

of such facilities by the Board shall be subject to such

reasonable conditions as the highway department or other

affected agency of a signatory party may require; pro-

vided, however, that the Board shall not construct or

operate transit or related facilities upon, over, or across

any parkways or park lands without the consent of, and

except upon the terms and conditions required by, the

agency having jurisdiction with respect to such parkways

and park lands, but may construct or operate such facili-

ties in a subway under such parkways or park lands upon

such reasonable terms and conditions as may be specified

by the agency having jurisdiction with respect thereto.

“Compliance with Laws, Regulations and Ordinances

“75. The Board shall comply with all laws, ordinances

and regulations of the signatories and political subdivi-

sions and agencies thereof with respect to use of streets,

highways and all other vehicular facilities, traffic control

and regulation, zoning, signs and bulldings.

“Police

“76. The Board is authorized to employ watchmen,

guards and investigators as it may deem necessary for the

protection of its properties, personnel and passengers and

such employees, when authorized by any Jurisdiction

within the Zone, may serve as special police officers in any

such jurisdiction. Nothing contained herein shall relieve

AEM GN

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21 FED THROUGH

33a

any signatory or politica] subdivision or agency thereof

from its duty to provide police service and protection or

to limit, restrict or interfere with the jurisdiction of or

performance of duties by the existing police and law of

enforcement agencies.

“Exemption from Regulation

“77, Except as otherwise provided in this Title, any

transit service rendered by transit facilities owned or con-

trolled by the Authority and the Authority or any cor-

poration, firm or association performing such transit serv-

ice pursuant to an operating contract with the Author-

ity, shall, in connection with the performance of such

service, be exempt from al] laws, rules, regulations and

orders of the signatories and of the United States other-

wise applicable to such transit service and persons, except

that laws, rules, regulations and orders relating to in-

spection of equipment and facilities, safety and testing

shall remain in force and effect; provided, however, that

the Board may promulgate regulations for the safety of

the public and employees not inconsistent with the ap-

plicable laws, rules, regulations or orders of the signa-

tories and of the United States.

“Tax Exemption

“76. It is hereby declared that the creation of the Au-

thority and the carrying out of the corporate purposes

of the Authority is in all respects for the benefit of the

an essential governmental function, including, without

limitation, proprietary, governmental and other functions,

in the exercise of the powers conferred by this Title. Ac-

cordingly, the Authority and the Board shall not be re-

quired to pay taxes or assessments upon any of the

property acquired by it or under its jurisdiction, control,

possession or supervision or upon its activities in the

operation and maintenance of any transit facilities or

upon any revenues therefrom and the property and in-

come derived therefrom shall be exempt from all federal,

State, District of Columbia, municipal and loca) taxation.

This exemption shall include, without limitation, all

motor vehicle license fees, sales taxes and motor fuel

taxes.

“Reduced Fares

“79. The District of Columbia, the Northern Virginia

rtation District, the Washington Suburban Tran-

sit District and the component governments thereof, may

enter into contracts or agreements with the Authority to

make equitable payments for fares lower than those estab-

lished by the Authority pursuant to the provisions of ar-

ticle XIII hereof for any specified class or category of

riders.

“Liability for Contracts and Torts

“80. The Authority shall be liable for its contracts and

for its torts and those of its Directors, officers, employees

and agent committed in the conduct of any proprietary

function, in accordance with the law of the applicable

MELE ANAT PRA LN LILES LOE MART NMS

34a

signatory (including rules on conflict of laws), but shall

not be Mable for any torts occurring In the performance

of a governmental function. The exclusive remedy for

such breach of contracts and torts for which the Author-

ity shall be liable, as herein provided, shall be by suit

against the Authority. Nothing contained in this Title

shall be construed as a waiver by the District of Colum-

bia, Maryland, Virginia and the counties and cities within

the Zone of any immunity from sult.

“Jurisdiction of Courts

“81. The United States District Courts ‘shall have ori-

ginal jurisdiction, concurrent with the Courts of Mary-

land and Virginia, of all actions brought by or against

the Authority and to enforce subpoenas issued under this

Title. Any such action initiated in a State Court shall be

removable to the appropriate United States District Court

in the manner provided by Act of June 25, 1948, as

amended (28 U.S.C. 1446).

“Condemnation

“82. (a) The Authority shall have the power to acquire

by condemnation, whenever in its opinion it is necessary

or advantageous to the Authority to do fo, any real or

personal property, or any interest therein, necessary or

useful for the transit system authorized herein, except

property owned by the United States, by a signatory, or

any political subdivision thereof, whenever such property

cannot be acquired by negotiated purchase at a price

satisfactory to the Authority.

“(b) Proceedings for the condemnation of property in

the District of Columbie shall be instituted and main-

tained under the Act of December 23, 1963 (77 Stat. 577-

581, D.C. Code 1961, Supp. IV, Sections 1351-1368). Pro-

ceedings for the condemnation of property located else-

where within the Zone shall be instituted and maintained,

if applicable, pursuant to the provisions of the Act of

August 1, 1888, as amended (25 Stat. 357, 40 U.S.C. 257)

and the Act of June 25, 1948 (62 Stat. 935 and 937, 28

U.S.C. 1358 and 1403) or any other applicable Act: pro-

vided, however, that if there is no applicable Federal law,

condemnation proceedings shall be in accordance with

the provisions of the State law of the signatory in which

the property is located governing condemnation by the

highway agency of such state. Whenever the words ‘real

property,’ ‘realty,’ ‘land,’ ‘easement,’ ‘right-of-way,’ or

words of similar meaning are used in any applicable fed-

eral or state law relating to procedure, jurisdiction and

venue, they shall be deemed, for the purposes of this

Title, to include any personal] property authorized to be

acquired hereunder.

“(c) Any award or compensation for the taking of

property pursuant to this Title shall be paid by the Au-

thority, and none of the signatory parties nor any other

agency, instrumentality or political subdivision thereof

shall be liable for such award or compensation.

“Enlargement and Withdrawal; Duration

“83. (a) When advised in writing by the Northern

Virginia Transportation Commission or the Washington

”

35a

Suburban Transit Commission that the geographical area

embraced therein has been enlarged, the Board, upon such

terms and conditions as it may deem appropriate, shall by

resolution enlarge the Zone to embrace the additional

area.

“(b) The duration of this Title shall be perpetual but

any signatory thereto may withdraw therefrom upon two

years’ written notice to the Board.

“(c) The withdrawal of any signatory shall not relieve

such signatory, any transportation district, county or city

or other political subdivision thereof from any obliga-

tion to the Authority, or inuring to the benefit of the

Authority, created by contract or otherwise.

“Amendments and Supplements

“84. Amendments and supplements to this Title to im-

plement the purposes thereof may be adopted by legisla-

tive action of any of the signatory parties concurred in by

all of the others.

“Construction and Severability

“85. The provisions of this Title and of the agreements

thereunder shall be severable and if any phrase, clause,

sentence or provision of this Title or any such agree-

ment is declared to be unconstitutional or the applicabil-

ity thereof to any signatory party, political subdivision

or agency thereof is held invalid, the constitutionality of

the remainder of this Title or any such agreement and

the applicability thereof to any other signatory party,

political subdivision or agency thereof or circumstance

shall not be affected thereby. It is the legislative intent

that the provisions of this Title be reasonably and liber-

ally construed.

“Effective Date; Execution

“86. This Title shall be adopted by the signatories in

the manner provided by law therefor and shall be signed

and sealed in four duplicate original copies. One such

copy shall be filed with the Secretary of State of each of

the signatory parties or in accordance with laws of the

State in which the filing is made, and one copy shall be

filed and retained in the archives of the Authority upon

its organization. This Title shall become effective ninety

days after the enactment of concurring legislation by or

on behalf of the District of Columbia, Maryland and

Virginia and consent thereto by the Congress and all other

acts or actions have been taken, including the signing

and execution of the Title by the Governors of Maryland

and Virginia and the Commissioners of the District of

Columbia.”

EX£curION OF COMPACT

According to information received, the Compact set

out in note above was signed as follows: By the Governor

of Maryland, November 17, 1966; by the Governor of

Virginia, November 21, 1966, and by the President of the

Board of Commissioners of the District of Columbia,

November 22, 1966.

Page 129

36a

Po.icy oF CONGRESS

Section 805 of Act Dec. 15, 1971, Pub. L. 92-196, 85 Stat.

659, provided: In granting its consent to the Washington

Metropolitan Area Transit Authority Compact and enact-

ing that compact for the District of Columbia, Congress

declared the policy that, to the extent that costs of the

regional transit project are not covered by user charges,

such cost shall be equitably shared among the Federal,

District of Columbia, and participating local governments

in the transit zone. In the National Capital Transporta-

tion Act of 1960 (§ 1—-1441 et seq.), Congress, in conform-

ance with this policy, authorized the Commissioner of the

District of Columbia to contract with the Transit Au-

thority to make annual capital contributions to provide

the District of Columbia's share of the cost of the regional

transit project. Pursuant to this authorization, the Dis-

trict of Columbia has entered into a Capital Contributions

Agreement with the Transit Authority and the political

subdivisions in the transit zone to make the agreed upon

annual contributions. It is the purpose of this section to

reaffirm the aforementioned policy established by Con-

gress with respect to the regional transit project and the

contractual obligation of the District of Columbia to pro-

vide its share of the cost of the regional transit project.

TRANSFER OF FUNCTIONS TO COMMISSIONER

See } 401 of Reorg. Plan No. 3 of 1967, eff. No. 3, 1967,

the appendix to title 1. See also §§ 301 and 503

TRAN or Funcrions To District or COLUMBIA

CouNctrIL

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

November \8, 1967, transferred the regulatory and other

functions $f the Board of Commissioners, with respect to

appointing|two directors as specified in section 5(a) of the

compact se} out as a note to this section (the appoint-

ments to ba made from a group of individuals, as specified

in par. 425 df 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

the District pf Columbia Council, see section 201 of Re-

organization \Plan No. 3 of 1967, set out in the appendix

to this title.

—

Cross REFERENCES

Blind and ysically disabled persons, equal access to

public conveyances, see § 6-1502.

yments and assistance to persons dis-

ams and projects of Washington Metro-

sit Authority, see § 5-732a.

Page 130

Taxpayers of District of Columbia do not have standing

to challenge bond referenda in Maryland or Virginia. Jd.

$1-1431a. Consent of Congress to compact amend-

ments.

(a) The Congress hereby consents to amendments

to articles I, III, VI, 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 II,

$ 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) subsiantially 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,

61, 66, and 79.

§ 1-1431b. Consent of Congress to —— 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 ITI 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.)

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:”.

38a

REFERENCE IN TEXT

The cited amendments are to sections 56(e) and 82(a)

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 to enter into and exe-

cute an amendment to the EMnpact 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 II, 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 ITI. (Nov. 6, 1966, 80

Stat. 1352, Pub. L. 89-774, § 2.)

Rereaences 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.

Transrer oF Puwcrions To COMMISSIONER

Bee § 401 of Reorg. Plan No. 3 of 1967, eff. Nov. 8, 1967,

set out in the appendix to title 1. See also §§ 301 and

508 of the Plan.

§1-1433. Transfer of func‘ion, property, documents,

ete.—Appropriations— Development of Plans—aAd-

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 shal] make pro-

~y

Page 131

BI! FEED THROUGH

39a

vision for the transfer to the Authority of the unex-

pended balance of the appropriations, and of other

funds, 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 unappro-

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

genera] fund of the District of Columbia, for pay-

ment to the Authority, any unappropriated portion

of the authorization specified in section 1-1424(a)

(2). Any such appropriations shall be used only

for the purposes for which such authorizations were

originally made.

(c) Pending the assumption by the Authority of

the functions and duties of the Agency, the Agency

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-

able basis, planning, engineering and such other

services for the Authority, as the Authority may re-

quest, or to obtain such services by contract, but

all such assistance and services shall be rendered in

accordance with policy determinations made by the

Authority and shall be advisory only.

(e) Amounts received by the Agency from the Au-

thority as provided in subsection (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

RErerences In TEXT

The National Capital Transportation Act of 1965, re-

ferred to in subsecs. (a) and (c), is clagesified to § 1-1421

et seq.

CoprrICATION

Section was also classified to 40 U.S.C. 672.

TRANSFER OF FUNCTIONS

Section 1(a)(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 (P-L. 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, tt is ordered

as follows:

SecTion 1. (a) There are hereby transferred to the

Washington Metropolitan Area Transit Authority, effec-

tive on September 30, 1967, (1) all real and persorial 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

(411) so much of the other assets, and so much of the

liabilities, 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 brcught 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-

Ri FEN THR OLIGH

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 ITI", as used in this section, refers to the Wash-

ington Metropolitan Area Transit Authority Compact,

which is ret out as a note under § 1-1431.

§ 11-1425. Amendment of laws and reorganization plans.

(9) All laws or parts of laws of the United States

ani of the District of Columbia inconsistent with

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 II

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.tx TEXT

“Title III”, as used in this section, refers to the Wash-

ington Metropolitan Area Transit Authority Compact,

which is set out as a note under § 1-1431.

§ 1-1436. Reservation of right to alter, amend or re-

peal—Submission of reports to Congress—Dis-

closure of information—Access to books and rec-

ords—Audits.

(a) The right to alter, amend or repeal this sub-

chapter is hereby expressly reserved.

(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 General 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, Pub. 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.

lb

APPENDIX B

= 973

KctuciV rome) fw -

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 73-2089 September Term, [9 7

Civil Action 2426-71

Inited States Court 0; Apneals

Bugene 2. Brow, et al.

v. fer the Cistrict of Colmo.2 C.r2-

D.C. Pransit System, Inc., et al., APFK2 Wir

appellants LEB

QRDER HUGH E. KLINE

Appellees’ suggestion for rehearing having been i itil

trengaitted to the full Court and ne Judge requested

a vote thereon, it is

ORDERED by the Court en banc that appellees' aforesaid

suggestion for rehearing en banc is denied.

For the Court:

HUGH E. KLINE

Clerk

2b

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 73-2089 September Term, 19 7,

Civil Action 2426-71

Eugene R. Brown, et al.

see Babbar eat § Gi

v.

D. C. Transit System, Inc., et al., AFK 2 Wir

Appellants eB i

Before: Danaher, Senior Circuit Judge; Leventhal and Wibkeysy ©. KLIIN

Circuit Judges. CLEX«

ORDER

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

74

Wid

LINE

RE Ce

ly,

3p SOM: »

. A

| 2p

Notice: This opinion is subject to formal revision before publication

in the Federal Reporter or U.S. App. D.C. Keports. 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,

Ine.

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.

B!| FEED THROUGH

ae an a oe on fa a Faas

4b

DANAHER, Senior Circuit Judge: The above-named ap-

pellees (hereinafter, “Plaintiffs”) were bus drivers in the

employ of D.C. Transit System, Inc. (hereinafter,

“Transit” ) whose services were terminated, as the dis-

trict judge found, “because of failure to conform * their

facial hair to the styling required by D.C. Transit Regula-

tion #+70-67.” ? He concluded after consideration of cross-

motions for summary judgment that Transit’s Regulation

and the discharge of the Plaintiffs were in violation of

their Fifth Amendment rights. In response to a motion

of D.C. Transit, the district judge issued an order which

found that the court’s Fifth Amendment ruling “involves

a controlling question of law as to which there is sub-

stantial ground for difference of opinion,” and that an

appeal from it may materially advance termination of

1“Their non-conformity consisted of sideburns extending

approximately two inches below their earlobes and . . . in

‘mutton chop’ fashion toward their mouths,” the judge found.

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

(1) Employees must be clean and neat and operators

must be clothed in full regulation uniform.

(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/,” in width, length

and protrusion).

(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 14” below the earlob.

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

are not permissible.

5b

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, 1973, 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 1833 (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

“could 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

Ne

&

7b

of the District of Columbia or one created 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 Comm’n

v. Pollak, 343 U.S. 451 (1952), reversing this court’s

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 an in-

vestigation of, and after hearings, had rejected Pollak’s

complaint against the exposure of the captive audience,

the riding public, to the utiiity’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. 348 U.S. 461.

° See note 4, supra.

Compare the Court’s observations as to the status of the

utility in Jackson v. Metropolitan Edison Company, 95 S.Ct.

449, 454-57, (1974), as related to other Pennsylvania corpo-

rations.

* The Pollak Court noted that the grant of a monopoly to a

private entity imposed no obligation on the State, even though

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 U.S.

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. 343 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.

Pollak as a passenger had sought to override the possible

preference of other transit 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 that

the “record shows no violation of the Due Process Clause of

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 properiy

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 our 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., supra 157 U.S.App.

D.C. at 25, 481 F.2d at 1125: “Good grooming regulations

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.

Justice Douglas who alone dissented from the denial of

certiorari in Olff 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

j

|

can deny a student education in its public school system

unless his hair style comports with the standards of the

school board.

[Continued]

eo oe ee” le on ont iad ©

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.

1° [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).

BI EE

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. we

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 pesitions 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

|

|

| EED THROUGH

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 vy.

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 §. 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

Aa;

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 y,

Schmidt, 460 F.2d 609, 615n. (Sth Cir. 1972);

Richards v. Thurston, 424 F.2d 1281, 1285 (1st 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 plaintiff's 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 ine 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

BLE

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

2.

Bi FEED THROUGH

FOOTNOTES

. 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.

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

(1) Employees must be clean and neat and operators

must be clothed in full regulation uniform.

ak ae 2 Be

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

BLEEI

7

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

FEED THROUGH

POOR COPY

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

21b

[Certificate of Service Omitted in Printing]

{Caption Omitted in Printing]

ORDER

A Memorandum Opinion ard an Order granting

partial summary judgment in ‘avor 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 23 U. sg § 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

BILE

{

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

B| FED THROUGH

mrarr , a ot - Oa

SAO POMERAT oman ang]

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]