B-141529, DEC 26, 1972

B-141529, DEC 26, 1972

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY - CONSTRUCTION FUNDS - COURT LITIGATION IN PROGRESS CONCERNING THE QUESTION AS TO WHETHER FEDERAL FUNDS RECEIVED BY THE WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY (WMATA) FOR THE AUTHORIZED SUBWAY SYSTEM ARE AVAILABLE TO PAY FOR CONSTRUCTION OF FACILITIES TO ACCOMMODATE THE HANDICAPPED AS REQUIRED BY PUB. L. 91 205. THE COMP. GEN. REAFFIRMS THE LONG-STANDING POLICY OF GAO TO DECLINE TO RULE ON ISSUES IN LITIGATION IN THE COURTS.

TO MR. JOSEPH L. FISHER:

REFERENCE IS MADE TO THE LETTER OF JULY 27, 1972, WITH ENCLOSURES, FROM THE GENERAL MANAGER, WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY (WMATA), REQUESTING OUR VIEWS AS TO WHETHER FEDERAL FUNDS RECEIVED BY WMATA FROM THE UNITED STATES UNDER PRESENT APPROPRIATIONS FOR THE AUTHORIZED SUBWAY SYSTEM (KNOWN AS METRO), AS WELL AS FUNDS FROM THE LOCAL JURISDICTIONS INVOLVED, ARE AVAILABLE TO PAY FOR CONSTRUCTION OF FACILITIES TO ACCOMMODATE THE HANDICAPPED AS REQUIRED BY THE ACT OF AUGUST 12, 1968, PUB. L. 90-480, AS AMENDED BY THE ACT OF MARCH 5, 1970, PUB. L. 91-205, 42 U.S.C. 4151 ET. SEQ.

THE GENERAL MANAGER STATES THAT THESE FACILITIES ARE ESTIMATED TO COST $65 MILLION, AND THAT THE QUESTION HE PRESENTS IS CURRENTLY IN ISSUE BEFORE THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA IN WASHINGTON URBAN LEAGUE, INC. ET AL., V. WASHINGTON METROPOLITAN TRANSIT AUTHORITY, C.C.A. NO. 788-72. ON JUNE 29, 1972, IN AN OPINION BY JUDGE WILLIAM B. JONES, THE DISTRICT COURT DENIED PLAINTIFFS' REQUEST FOR A PRELIMINARY INJUNCTION REQUIRING WMATA TO STOP CONSTRUCTION ON METRO PENDING A DETERMINATION OF THE ISSUE ON THE MERITS. ONE OF THE REASONS FOR THE COURT'S DECISION WAS THAT IT FELT THE PLAINTIFFS HAD NOT MADE A STRONG SHOWING THAT THEY ARE LIKELY TO PREVAIL ON THE MERITS.

SHORTLY AFTER RECEIPT OF THE GENERAL MANAGER'S LETTER, WE WERE INFORMALLY CONTACTED BY ATTORNEYS FOR THE PLAINTIFFS WHO WISHED TO HAVE THE OPPORTUNITY TO PRESENT THEIR VIEWS ON THE ISSUES INVOLVED BEFORE WE REACHED OUR DECISION. WE INFORMALLY ADVISED PLAINTIFFS' ATTORNEYS THAT IT HAS LONG BEEN THE POLICY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT TO DECLINE TO RULE ON ISSUES INVOLVED IN CASES WHICH ARE UNDER LITIGATION IN THE COURTS AND THAT SINCE THE MATTERS RAISED BY THE GENERAL MANAGER OF WMATA ARE THE SUBJECT OF PENDING LITIGATION, IT WAS OUR PRELIMINARY DETERMINATION THAT IT WOULD BE INAPPROPRIATE FOR US TO COMMENT THEREON AT THIS TIME. AT THEIR REQUEST WE REFRAINED FROM SO RULING PENDING THE RECEIPT OF A WRITTEN STATEMENT FROM THESE ATTORNEYS AS TO THE REASONS THEY FEEL WE SHOULD REACH A DECISION ON THE MERITS IN THIS CASE.

A LETTER DATED SEPTEMBER 21, 1972, FROM JAMES A. DOBKIN, ESQ., OF ARNOLD AND PORTER, SETS FORTH SEVERAL ARGUMENTS IN FAVOR OF OUR REACHING A DISPOSITION ON THE MERITS. FIRST, IT IS SUGGESTED THAT THIS OFFICE HAS EXPERTISE IN THE USE OF APPROPRIATED FUNDS AND THAT PURSUANT TO SECTION 70(B) OF THE INTERSTATE COMPACT THAT CREATED WMATA (PUB. L. 89-774), WE HAVE THE AUTHORITY TO AUDIT WMATA'S EXPENDITURE OF FEDERAL FUNDS. SECOND, IT IS NOTED THAT ONE OF THIS OFFICE'S PRIMARY FUNCTIONS IS TO ADVISE CONGRESS AND THAT THERE IS DISTINCT CONGRESSIONAL INTEREST - EXPRESSED IN HEARINGS HELD ON JUNE 29, 1972, BY REPRESENTATIVE KENNETH GRAY, CHAIRMAN, SUBCOMMITTEE ON PUBLIC BUILDINGS AND GROUNDS, HOUSE COMMITTEE ON PUBLIC WORKS - IN OUR REACHING A DETERMINATION. THIRD, IT IS SUGGESTED THAT SINCE THE LITIGATION IS PRESENTLY "IN A STATE OF DORMANCY," OUR DECISION - PRESUMABLY, HOWEVER, ONLY IF FAVORABLE TO THE PLAINTIFFS - COULD FACILITATE THE SPEEDY RESOLUTION OF THE LITIGATION AND THEREBY DECREASE THE EVENTUAL COST OF INSTALLING FACILITIES FOR THE HANDICAPPED. FINALLY, IT IS STATED THAT THE MERE FACT THAT THE QUESTION PRESENTED IS ALSO THE SUBJECT OF LITIGATION SHOULD NOT DETER US FROM RENDERING A DECISION SINCE "CURRENT JUDICIAL ATTITUDE ENCOURAGES ADVISORY OPINIONS FROM YOUR OFFICE TO ASSIST THE COURT IN THE DISPOSITION OF CASES WITHIN YOUR AREAS OF EXPERTISE." CASES CITED BY MR. DOBKIN INCLUDE THE WHEELABRATOR CORP. V. CHAFEE, 455 F.2D 1306 (1971); GENERAL ELECTRIC CO. V. SEAMANS, D.C. CIR., NO. 72 1243, JUNE 16, 1972; SERV-AIR, INC. V. SEAMANS, D.C. CIR., NO. 72- 1616, JUNE 30, 1972; AND MERRIAM V. KUNZIG, E.D. PA., C.A. NO. 71-2262.

IN RESPONSE TO THE AFOREMENTIONED REASONING, WE WOULD LIKE TO POINT OUT THAT ONCE AN ISSUE IS PLACED BEFORE THE JUDICIARY FOR DETERMINATION, IT IS FOR THAT COORDINATE BRANCH OF THE GOVERNMENT TO RESOLVE. THIS OFFICE HAS NO AUTHORITY TO INTERVENE IN SUCH PROCEEDINGS ABSENT THE CONSENT OF THE COURT. FURTHER, ONCE AN ISSUE IS BEFORE A COURT, NEITHER THE PRIVATE PARTY (WHICH NEVER IS) NOR THE GOVERNMENT AGENCY INVOLVED WOULD BE BOUND BY THE DECISION OF THIS OFFICE. THIS IS ESPECIALLY TRUE IN THIS CASE SINCE WMATA IS NOT A FEDERAL AGENCY AND, HENCE, IS NOT BOUND BY OUR DECISIONS. (OF COURSE, THIS DOES NOT MEAN THAT IN MORE APPROPRIATE CIRCUMSTANCES, THIS OFFICE WOULD NOT RENDER OPINIONS TO WMATA ON MATTERS RELATING TO THE FEDERAL PORTION OF ITS MONIES.) MOREOVER, EVEN IF WMATA WERE TO AGREE TO BE BOUND BY OUR OPINION, IN THE ABSENCE OF A SIMILAR AGREEMENT BY THE PLAINTIFFS ONLY A DETERMINATION IN FAVOR OF THE PLAINTIFFS WOULD EXPEDITE THE INSTALLATION OF THE FACILITIES FOR THE HANDICAPPED AND WE, OF COURSE, CANNOT SAY WE WOULD REACH SUCH A RESULT. IN THIS REGARD WE MIGHT POINT OUT THAT AT LEAST AT FIRST GLANCE AND WITHOUT GOING INTO THE MATTER IN DETAIL, THE REASONING BY JUDGE JONES IN HIS DECISION DETERMINING THAT THE PLAINTIFFS HAD NOT MADE A STRONG SHOWING THEY WERE LIKELY TO PREVAIL ON THE MERITS IS PERSUASIVE. FINALLY, WHILE WE HAVE AT TIMES RENDERED ADVISORY OPINIONS ON CASES WHERE LITIGATION WAS PENDING - SUCH AS THOSE REFERRED TO BY MR. DOBKIN AND CITED ABOVE - WE HAVE GENERALLY RESTRICTED THAT PRACTICE TO CASES IN WHICH THE COURTS HAVE EXPRESSED A DESIRE TO RECEIVE OR AWAIT OUR OPINION.

AS TO OUR DECISION OF NOVEMBER 17, 1971, B-170989, REFERRED TO IN ARNOLD AND PORTER'S LETTER, WHILE IN THAT CASE WE RULED ON THE ISSUES INVOLVED IN LITIGATION WHERE THE DISTRICT COURT HAD DENIED PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION (KECO V. UNITED STATES, 318 F. SUPP. 1361), THE PLAINTIFF THEREIN HAD REQUESTED THE UNITED STATES ATTORNEY TO AGREE TO A DISMISSAL OF THE CASE WITHOUT PREJUDICE (WHICH REQUEST WAS REFUSED) AND ALSO COMMITTED HIMSELF TO BE BOUND BY OUR FINDINGS ON THE MERITS OF THE ISSUES INVOLVED IN THE BID PROTEST. SUCH CIRCUMSTANCES DO NOT EXIST IN THE INSTANT CASE.

IN VIEW OF ALL THE ABOVE, WE MUST REAFFIRM THE LONG STANDING POLICY OF THE ACCOUNTING OFFICERS OF THE GOVERNMENT - A POLICY INVOKED EVEN WHERE THE OPINION IS REQUESTED BY A COMMITTEE OR MEMBER OF CONGRESS - TO DECLINE TO RULE ON ISSUES INVOLVED IN CASES SUCH AS THIS ONE, WHICH ARE IN LITIGATION IN THE COURTS. CONSEQUENTLY, SINCE THE MATTERS RAISED IN THE GENERAL MANAGER'S LETTER ARE THE SUBJECT OF PENDING LITIGATION, IT WOULD BE INAPPROPRIATE FOR US TO COMMENT THEREON AT THIS TIME.

COPIES OF THIS LETTER ARE BEING SENT TO THE EXECUTIVE SECRETARY, THE PRESIDENT'S COMMITTEE ON EMPLOYMENT OF THE HANDICAPPED; THE ACTING EXECUTIVE DIRECTOR, PARALYZED VETERANS OF AMERICA; AND JAMES A. DOBKIN, ESQ., ARNOLD AND PORTER, ATTORNEYS AT LAW.