The Black United Front, Petitioners, v. Washington Metropolitan Area Transit Commission, Respondent.district of Columbia, Petitioner, v. Washington Metropolitan Area Transit Commission, Respondent.democratic Central Committee of the District of Columbia Andbruce J. Terris, Petitioners, v. Washington Metropolitan Area Transit Commission, Respondent, 436 F.2d 227 (D.C. Cir. 1970)

In the late afternoon of last Saturday, June 27, petitioners filed in this court their respective petitions for review of Order No. 1052 of the Washington Metropolitan Area Transit Commission, the respondent. That order, published on the previous day, granted D. C. Transit System, Inc., certain fare increases, to take effect at 12:01 a.m. on Sunday, June 28, for transportation service in the District of Columbia and nearby Maryland. Accompanying each petition for review was a motion seeking a stay of Order No. 1052 on a common ground, later detailed herein. With a serious challenge to the order's imminent operation, we convened an emergency hearing on the motions, at which all parties were represented, and thereafter ordered a temporary stay. Now, in this opinion, we delineate the jurisprudential basis upon which our stay order was predicated.

* Order No. 1052 emanated from a proceeding before the Commission, of some three-months duration, to which one of our petitioners, the District of Columbia, was a formal party.¹  Officially announced at approximately 11:00 a.m. on Friday, June 26,²  information about the order gradually spread to the general public, as the day wore on, through dissemination of its purport by news media. The Commission's office, however, closed for the weekend at 4:45 p.m. on that day while the order, by its terms, was to become alive about 37 hours after its proclamation. Thus there remained a period of only about six hours between release of the order and commencement of its operation during which the Commission's office was open for business.

By affidavit and representations at the hearing, petitioners portrayed vividly a wave of public resentment to the fare elevations the Commission's order made possible. It is not startling, then, that attacks on the order would be launched, and attempts made to head off the increases. There was, moreover, an avenue, legally available to those affected by the order, along which efforts of that character might be pursued.

The Commission is a creature of the Washington Metropolitan Area Transit Regulation Compact,³  by which its powers and responsibilities are given general definition. Section 16 of the Compact authorizes 'any person affected by any final order or decision of the Commission' to file with the Commission an application for reconsideration of such aspects of the order or decision as are specifically challenged as erroneous.⁴  That section also provides for a speedy resolution of the issues tendered for reconsideration,⁵  and for an automatic stay of the order or decision, upon the 'filing' of such an application, until final action thereon.⁶  Petitioners sought to utilize these provisions as the vehicle to an administrative reexamination of Order No. 1052 and a suspension of its execution in the meantime.

Each petitioner completed an application for Commission reconsideration on June 27, the day following announcement of the order.⁷  By then, as already indicated, the Commission's office was shut down for the weekend, with reopening scheduled some 32 hours after the order was to take effect. In this dilemma, two petitioners deposited their applications in the Commission's closed office and notified the Commission's Chairman of that course of action; the two joint petitioners remaining informed the Chairman of their desire to file their application too. In each instance the Chairman responded, in substance, that because of the weekend closing the applications must await handling when the office resumed business on the following Monday morning.⁸  The proceedings in this court were then instituted, with the outcome we have mentioned.

II

Although some of the arguments for and against judicial stay of Order No. 1052 range much wider,⁹  we find it necessary to focus upon but one question: whether, on June 27, there was a 'filing' with the Commission of one or more of the applications for reconsideration. If so, as we have pointed out, the filing, in consequence of Section 16 of the Compact, precipitated a stay of the order until final action by the Commission on reconsideration.¹⁰  In our view, the events transpiring on June 27 constituted such a filing, and that filing, in turn, barred inauguration on June 28 of the fare increases the Commission had approved.¹¹ 

We do not reach the question whether the after-hours delivery of an application for reconsideration to the Commission's office amounts, without more, to a Section 16 filing,¹²  for here there was a great deal more. On the one hand, the Commission maintains a schedule of office hours, established by its regulations, and filing of the applications was undertaken outside those hours. On the other hand, the Chairman of the Commission, we reiterate, was apprised of each of the three applications, of physical deposit of two of them in the Commission's office, and of the ongoing endeavor to file the third. Not to be ignored, either, are the self-evident objectives underlying Section 16, or their obvious role in the situation at hand.¹³  With these considerations, we think our 1969 Yohalem decision¹⁴  charts clearly the decisional course we must sail in the litigation at bar.

In Yohalem, an applicant for reconsideration slid his application under the door of the Commission's office several minutes after its closing on the 30th day after the publication of an order, and the application was actually seen there by the Commission's Executive Director about an hour later. The Commission treated the application as filed on the next day and, consequently, as coming too late to require attention by the Commission.¹⁵  We rejected that position and held 'that under the circumstances of this case, where the party seeks to raise issues of importance to the public, where the submission was only a few minutes late, and where the papers came to the attention of a responsible official of the Commission on the day tendered, even if only by accident, the Commission's refusal to treat the application as timely is an abuse of discretion.'¹⁶ 

When Yohalem was before us, we were mindful of cases deciding that after-hours filings are ineffective, but found it 'not surprising that exceptions to the rule appear when cases involving the public interest arise.'¹⁷  We looked to two of our earlier decisions¹⁸  and 'deduce(d) from their holdings the principle that when the public interest is involved and when the filing comes to the attention of responsible officials of the agency on the day tendered, a minor failure to comply with 'normal business hours' should not bar acceptance of the filing as of the day it was actually made.'¹⁹  Thus we recognized that an ordinarily reasonable requirement that filings be made during established business hours might well succumb to the exigencies of a matter of great public concern. And because, in Yohalem, the Commission had not given that consideration its just due, we ourselves took the action necessary to rectify the error in refusing to regard the application in question as timely filed.²⁰ 

III

The case before us, in its essential aspects, is similar to Yohalem. Here, as there, the petitioning parties 'challenge() the recent increase in bus fares, a question of great importance to the general public;'²¹  here, as there, the applications posing the challenges were brought home, though outside business hours, to an officer of the Commission.²²  We realize that in Yohalem the deposit of the application and the notice thereof occurred shortly after hours on a regular business day, while here similar events transpired on a day the Commission is regularly closed. By our appraisal, that difference is too trivial to distinguish the two cases, and to do so on that basis would frustrate important aims of Section 16 in the context of the circumstances of this case.

As we construe Section 16, the stay of an order, by the filing of an application for its reconsideration, is automatic, immediate and mandatory.²³  Only if the applicant consents in writing to continued operation of the order is the stay avoided, and not even then if the Commission directs otherwise.²⁴  The plain purpose of these provisions is to maintain the status quo-- the situation immediately prior to the time the order is to become effective-- pending the Commission's final action on the application,²⁵  unless both the applicant and the Commission make a countervailing assessment as to what the situation demands. We find nothing in Section 16 to support the proposition that the Commission may unilaterally negate the stay, even briefly, after a filing under that section takes place.

Yet that is precisely what, in effect, the Commission would accomplish here if its thesis were to gain favor. The timing of Order No. 1052, as to both its release and its effective operation, narrowed oppressively the time span within which even formal parties to the administrative proceeding could seek reconsideration by a filing during business hours on June 26. The brevity of the span practically foreclosed responsive action on that day by the District of Columbia, the one party petitioning here, whose counsel had to obtain authorization to proceed further. Those not parties but affected by the fare increases²⁶  -- and the record indicates that they are numerous-- had little or no chance to learn of the order until late in the day, much less to do anything about it before the Commission's weekend closing.²⁷  Speaking literally, the Commission made it virtually impossible for anyone at all to make an in-hours filing for reconsideration of the hike in fares before it was to achieve reality.

We do not presume to prescribe the timing of Commission orders, or to set the Commission's office hours; any thought to the contrary misses the point completely. The Commission, of course, has prerogatives as to such matters, but it has none whatever to thwart a goal which three sovereigns have expressed through the Compact. And when the Commission, however motivated,²⁸  so fashions a substantial fare increase that the riding public is effectively precluded from seeking reconsideration beforehand during regular business hours, it is hardly in position to support a curtailment of Section 16 rights by the claim that its regular closed hours are inviolate. That argument, urged upon us by the Commission's counsel at 10:30 p.m. on a Saturday night, seemed singularly devoid of appeal.

Here all the time schedules were the Commission's and they so concurred that, when affected groups sought promptly to invoke the Commission's rehearing function, its Chairman professed the Commission's inability or unwillingness to respond prior to the advent of higher bus fares in the Washington metropolitan community. That combination of circumstances, we are convinced, violated both the spirit and the letter of Section 16, and imposes on us the obligation to give substance to what it says.²⁹  We hold that two of the applications for reconsideration became filed with the Commission upon their deposit in the Commission's office and notification of the Chairman thereof. We hold further that, under the circumstances here, the third application became filed with the Commission upon notification of the applicants' wish to file it, and their readiness and willingness to do whatever was necessary to that end. Our ultimate conclusion is that the filing of these applications acted to automatically stay forthwith, by force of Section 16 of the Compact, the operation of Order No. 1052 until such time as the Commission takes final action upon them. Our order accordingly effects the Section 16 stay of Order No. 1052 pending final decision by the Commission on each of the three applications for reconsideration.³⁰