Democratic Cent. Committee of District of Columbia v. Washington Metropolitan Area Transit Com'n

Decision Date06 June 1988
Docket NumberNos. 21865,24415,24398,24428 and 75-1632,s. 21865
Citation842 F.2d 402
PartiesDEMOCRATIC CENTRAL COMMITTEE OF the DISTRICT OF COLUMBIA, et al., Petitioners, v. WASHINGTON METROPOLITAN AREA TRANSIT COMMISSION, Respondent, D.C. Transit System, Inc., Intervenor.
CourtU.S. Court of Appeals — District of Columbia Circuit

Donald J. Balsley, Jr., with whom Gregory M. Barth, and Douglas N. Schneider, Jr., Washington, D.C., were on the brief, for Washington Metropolitan Area Transit Com'n, respondent in Nos. 21865, 24398, 24415, 24428 and 75-1632.

Harvey M. Spear, with whom Stanley J. Fineman was on the brief, for D.C. Transit System, Inc., petitioner in No. 75-1632 and intervenor in Nos. 21865, 24398, 24415 and 24428. Michael B. McGovern, C. Francis Murphy and Charles A. Camalier, III, Washington, D.C., also entered appearances.

John H. Suda, Acting Corp. Counsel, Charles L. Reischel, Deputy Corp. Counsel, and Lutz Alexander Prager, Deputy Asst. Corp. Counsel, Washington, D.C., were on the brief for District of Columbia, petitioner in No. 24415.

Gilbert Hahn, Jr., with whom Mary Kathleen Hite, Washington, D.C., was on the brief, for Black United Front, et al., petitioner in No. 24428.

Leonard N. Bebchick, Washington, D.C., was on the brief for Leonard N. Bebchick, et al., intervenors in No. 75-1632.

Before ROBINSON, Circuit Judge, MacKINNON, Senior Circuit Judge, and DAVIS, Circuit Judge. *

Opinion for the Court filed by Circuit Judge SPOTTSWOOD W. ROBINSON, III.

Dissenting and Concurring Opinion filed by Senior Circuit Judge MacKINNON.

SPOTTSWOOD W. ROBINSON, III, Circuit Judge:

Today we conclude yet another chapter in the protracted dispute between D.C. Transit, Inc. (Transit), formerly the franchiser of mass transportation services in the Washington metropolitan area, 1 and its patrons. The specifics of the controversy have been detailed in our prior decisions, 2 and need only be briefly recounted from time to time. In Democratic Central Committee v. Washington Metropolitan Area Transit Commission (DCC I) 3 and Democratic Central Committee v. Washington Metropolitan Area Transit Commission (DCC II) 4 we reviewed Orders Nos. 773 5 and 1052 6 of the Washington Metropolitan Area Transit Commission, which authorized, respectively, fare raises for Transit in 1968 and 1970. In those cases, we invalidated the increases and held that Transit's riders were entitled to restitution for the overcharges. 7 We remanded to the Commission for computation of the amount of restitution, and retained jurisdiction in full.

Our task now is to evaluate the Commission's calculation of the restitution award

and to resolve related issues raised by the parties. In Part I of this opinion, we consider the Commission's holding that Transit was sufficiently viable and efficient in 1970 to reap the benefit of a fare increase, and conclude that substantial evidence supports the Commission's findings in this regard. In Part II, we examine the Commission's identification of properties converted by Transit from operating to nonoperating status, the Commission's computation of the amount of value appreciation on those properties, and the extent to which that amount should be shared by Transit's farepayers. In Part III, we allow the Commission reimbursement from the restitutionary fund for the expenses it incurred in connection with the remand, but hold that all other parties should bear their own costs. We decline to rule on the request for attorneys' fees at this time, and instead remand to the Commission for additional findings pertinent thereto. 8

I. EFFICIENCY AND VIABILITY

The Washington Metropolitan Area Transit Regulation Compact, under which Transit operated, stipulated that the Commission could not call upon farepayers to bear the cost of inefficient management, 9 and thus required the Commission to consider Transit's operating efficiency before authorizing any fare increase. We ourselves held that Transit's patrons could not be compelled to furnish a reasonable rate of return to investors if its operations were inherently unprofitable, and that therefore the Commission must satisfy itself that Transit was economically viable before allowing a higher fare. 10

In DCC II, we concluded that the Commission did not discharge its duty to consider efficiency and viability when in 1970 it set a new fare in Order No. 1052. 11 We noted that the gravity of this omission was underscored by the Commission's denial of a 1972 fare increase because Transit did not meet the efficiency and viability criteria. 12 We directed the Commission to examine these factors on remand and tell us whether there was a lack of efficiency or viability in 1970.

In compliance, the Commission sponsored a study by Pasquale A. Loconto exploring Transit's efficiency and viability at the time of the 1970 fare increase. 13 Loconto had previously reported on Transit's 1972 operating condition, and that report had played a dispositive role in the Commission's decision to deny Transit's request for a fare increase that year. 14 In addition, a Commission hearing examiner conducted 96 days of testimony on Transit's 1970 financial status, which culminated in the issuance of a 448-page report on efficiency BUF first contends that the Commission's holding that Transit was managed efficiently in 1970 is not supported by the record evidence. In this regard, BUF asserts that a comparison of the two Loconto reports reveals that the same features that led to the Commission's finding of managerial inefficiency in 1972 also appeared in the 1970 Loconto Report. 17 Our review of those two reports, as well as the reports of the hearing officer and the Commission, leaves us in disagreement with BUF's contention. There is ample evidence in the record to underpin the Commission's conclusion that Transit's 1970 financial woes were caused, not by managerial inefficiencies, but by social factors beyond its control. 18 Accordingly, we affirm the Commission's ruling that Transit was efficiently managed at the time of the 1970 fare elevation.

                and viability issues. 15   The Commission, relying on the 1970 Loconto report and other evidence, upheld the hearing officer's finding that Transit was both efficient and viable in 1970. 16   Petitioner Black United Front (BUF) disputes this determination on several grounds
                

BUF also argues that the Commission misconstrued the test of viability we articulated in DCC II. 19 Therein we stated that, in order to determine whether Transit was viable in 1970, the Commission should investigate and determine

(a) if and to what extent the company would have been able to make a profit if there were no regulation at all, and (b) if and to what extent Transit could then earn a sufficient return so as to make it an attractive investment at any level of fares which could have been deemed "reasonable." 20

In phrasing our test that way, we asked the Commission to assume that Transit was operating in a hypothetical unregulated environment, and to disregard the knowledge gained from hindsight of Transit's condition after 1970. The Commission found, on the basis of conservative financial estimates, that in 1970 Transit had the potential to continue to generate modest profits and thus it retained the interest of its shareholders and creditors. 21 We find that the Commission's determination of viability is based on substantial evidence, and that the Commission properly carried out our instructions. 22 The Commission thus has cured its neglect of Transit's efficiency and viability when it promulgated Order No. 1052 by investigating and determining those matters on remand. It follows that Transit's farepayers are not entitled to any restitution on the now-refuted theory of a lack of efficiency or viability on Transit's part in 1970.

II. PROPERTY ISSUES

In DCC I and DCC II, we found that Orders Nos. 773 and 1052 were defective because the Commission had not considered the extent to which appreciation in the value of Transit's properties might have obviated the need to generate additional revenue through fare increases. 23 We held that Transit's farepayers were entitled, as restitution for fares unjustly exacted, to the accrued appreciation in value of in-service properties subsequently converted to nonoperating status. 24 We instructed the Commission to determine the amount of restitution due the farepayers by first substracting the book value of each identified property from its market value at the time it was transferred out of service 25 and then deducting the expenses that would have been incidental to any contemporaneous sale of the property. 26

On remand, the Commission identified sixteen properties 27 and estimated the market value of each on the date of its transfer to nonoperating status. From the property's then market value, the Commission subtracted its net book value at the time it was acquired by Transit, and the brokerage fees and tax expenses that Transit likely would have incurred had the property been sold. 28 The Commission concluded that Transit's farepayers are entitled to the benefit of $3,947,134 in appreciation to offset

                the increase in fares. 29   Transit and petitioners BUF and Democratic Central Committee of the District of Columbia (DCC) dispute the Commission's action in numerous respects, and we now address their contentions in turn
                
A. Identification Issues

The first claim is that the Commission erred in identifying the properties to be included in the computation of the restitution award. BUF and DCC argue that the Brookland Garage and the Eastern Garage 30 were not used for operating purposes after September, 1966, and that therefore...

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