labor/community v. L.A. County Metro

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LABOR/COMMUNITY STRATEGY 

CENTER; BUS RIDERS UNION;

SOUTHERN CHRISTIAN LEADERSHIP

CONFERENCE OF GREATER LOS

ANGELES COUNTY; KOREAN

IMMIGRANT WORKERS ADVOCATES; No. 06-56866

MARIA GUARDADO; RICARDO

ZELADA; NOEMI ZELADA,  D.C. No.

CV-94-05936-TJH

Plaintiffs-Appellants,

OPINION

v.

LOS ANGELES COUNTY

METROPOLITAN TRANSPORTATION

AUTHORITY; ROGER SNOBLE,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Terry J. Hatter, District Judge, Presiding

Argued and Submitted

May 12, 2008—Pasadena, California

Filed May 5, 2009

Before: Mary M. Schroeder, Barry G. Silverman, and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Silverman;

Dissent by Judge Berzon

5205

LABOR/COMMUNITY v. L.A. COUNTY MTA 5209

COUNSEL

Karen M. Lockwood (argued), Howrey LLP, Washington,

DC, Ethan B. Andelman, Howrey LLP, San Francisco, Cali-

fornia, Katherine M. Basile, Howrey LLP, East Palo Alto,

California, Richard A. Marcantonio, Angelica K. Jongco,

Public Advocates, Inc., San Francisco, California, for the

plaintiffs-appellants.

Caroline H. Mankey (argued), Patricia L. Glaser, James S.

Schreier, Christensen, Glaser, Fink, Jacobs, Weil, & Shapiro,

LLP, Los Angeles, California, Raymond G. Fortner, Jr.,

County Counsel, Charles M. Safer, Assistant County Counsel,

Office of the Los Angeles County Counsel, Los Angeles, Cal-

ifornia, for the defendants-appellees.

OPINION

SILVERMAN, Circuit Judge:

This appeal arises after fourteen years of litigation concern-

ing public transit in Los Angeles County. In 1994, the Labor/

Community Strategy Center and other Los Angeles County

community organizations and local residents, known collec-

5210 LABOR/COMMUNITY v. L.A. COUNTY MTA

ively as the “Bus Riders Union” or “BRU,” brought a civil

rights class action against the County’s Metropolitan Transit

Authority, charging the MTA with unlawfully discriminating

against “inner-city and transit dependent bus riders” in its

allocation of public transportation resources. The case did not

go to trial; rather, in 1996, the parties agreed to, and the dis-

trict court approved, a consent decree that committed MTA to

implementing “a detailed plan to improve bus service.” See

Labor/Community Strategy Ctr. v. L.A. County Metro. Trans.

Auth., 263 F.3d 1041, 1043 (9th Cir. 2001) (“Labor/

Community”). The district court’s jurisdiction over the decree

was explicitly set to expire in ten years.

Shortly before the tenth anniversary of the decree, BRU

moved to extend the duration of the decree on the grounds

that MTA had allegedly failed to comply with the decree’s

overcrowding provisions. BRU also sought civil contempt

sanctions against MTA for MTA’s alleged failure to comply

with a 2004 remedial order. Ruling that MTA had substan-

tially complied with the decree, the district court denied

BRU’s motion seeking these remedies and allowed the decree

to expire.

We hold today that the district court did not abuse its dis-

cretion in denying BRU’s motion to extend the decree and for

contempt sanctions. We therefore affirm the district court’s

decision in all respects.

I. Background

A. The Underlying Lawsuit

In 1994, BRU filed a class action under several federal civil

rights statutes,1 charging MTA with violating the Fourteenth

Amendment by discriminating against low income and minor-

ity residents of Los Angeles County. The alleged discrimina-

1

The complaint relied upon 42 U.S.C. §§ 1981, 1983, and 2000d.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5211

tion included expending a disproportionately high share of its

resources on commuter rail services, whose primary users

were wealthy non-minorities, and a disproportionately low

share on bus services, whose main patrons were low income

and minority residents.2

In March 1995, the district court certified a plaintiff class

of “[a]ll poor minority and other riders of MTA buses who are

denied equal opportunity to receive transportation services

because of the MTA’s operation of a discriminatory mass

transportation system.” On the eve of trial the parties submit-

ted a proposed consent decree, which the district court

approved on October 29, 1996. See Labor/Community, 263

F.3d at 1043.

B. The Consent Decree

The decree committed MTA to a wide array of improve-

ments in its bus services, including instituting new bus lines

to and from centers of employment, education, and health

care in the county; enhancing security on buses; improving

bus shelters; and maintaining its fares at specific levels.

BRU’s present appeal does not directly concern those aspects

of the decree.

BRU does contest MTA’s compliance with Section II.A of

the decree, which committed MTA to “[r]educing

[o]vercrowding [b]y [a]dding [n]ew [s]ervice.” The decree did

not set out a specific number of buses or hours of service the

MTA needed to add to achieve appropriate reductions in over-

crowding. Instead, the decree set forth specific “load factor

targets,” to be met by specific dates, and provided MTA with

“discretion in determining how the targets w[ould] be met.”

A “load factor” is “a numerical representation of the number

of people standing [and sitting] on a bus in relation to the

2

The allegations made in the underlying complaint are discussed in

more detail at Labor/Community, 263 F.3d at 1043.

5212 LABOR/COMMUNITY v. L.A. COUNTY MTA

number of seats.” Labor/Community, 263 F.3d at 1044 n.1.

For example, a forty-seat bus which contained forty-eight pas-

sengers would have a load factor of 1.2. Under the terms of

the decree, MTA was required to reduce the maximum load

factor for each relevant bus line to 1.35 by December 31,

1997, 1.25 by June 30, 2000, and 1.2 by June 30, 2002.

In addition to these substantive provisions, the decree

included a number of procedural mechanisms designed to

assure implementation and enforcement. Four are relevant to

this appeal.

First, the decree created a Joint Working Group, composed

of representatives from BRU and MTA. The purpose of the

Working Group was to “foster cooperation in the implementa-

tion” of the decree and to resolve disputes between the par-

ties.

Second, Section V of the decree established the position of

“Special Master,” “to facilitate the resolution of disputes aris-

ing under any provision of this Consent Decree” that could

not be settled by the Working Group. The parties agreed that

Donald T. Bliss would serve as the initial Special Master.

Third, Section VI, entitled “Modification of the Consent

Decree,” set forth the conditions under which the decree may

be modified. Under Section VI, a party seeking modification

must show “that a significant change in circumstances war-

rants revision of the Consent Decree, and that the proposed

revision or revisions are suitably tailored to the changed cir-

cumstances.”

Finally, Section VIII provided that the “District Court shall

retain jurisdiction over this litigation for ten years from the

date of approval of this Consent Decree in order to monitor

compliance with this Consent Decree.” The court approved

the decree on October 29, 1996, so the court’s obligatory

LABOR/COMMUNITY v. L.A. COUNTY MTA 5213

retention of jurisdiction was set to terminate on October 29,

2006. Section VIII stated further that:

At the end of seven years, MTA may file a motion

with the District Court to terminate the Consent

Decree and the Court shall grant such motion if

MTA shows to the Court’s satisfaction that it has

substantially complied with the Consent Decree and

that it has in place a service plan that will enable

continued adherence to the principles and objective

of the Consent Decree during the five years subse-

quent to the termination of this Consent Decree.

C. The 1999 and 2004 Orders

In September 1998, the members of the Working Group

agreed that on seventy-five out of the seventy-nine bus lines

monitored, MTA had not met the initial load factor target of

1.35 by the December 31, 1997 deadline. See Labor/

Community, 263 F.3d at 1046. As the parties’ representatives

could not agree on a remedial plan to address this failure, and

also to ensure that MTA would meet the second target of 1.25

by June 30, 2000, the Special Master issued an order on

March 6, 1999 mandating a plan which, as later revised,

required, among other things, that MTA acquire 379 addi-

tional buses. Id. at 1047.

MTA sought review of the 1999 Order, questioning both

the Special Master’s authority to impose it and the validity of

the factual findings and interpretation of the decree on which

it was premised. Id. The district court upheld the Special Mas-

ter’s findings regarding the agency’s noncompliance with the

1997 1.35 load factor target as not clearly erroneous, and

affirmed the 1999 Order as to the 248 buses that MTA was

required to purchase to meet the 1997 target. At the same

time, the district court declared it “too early to determine

whether the MTA is incapable of meeting” the 2000 load fac-

tor target, so it vacated the Special Master’s Order with regard

5214 LABOR/COMMUNITY v. L.A. COUNTY MTA

to the remaining additional buses and directed the Special

Master to reevaluate the need for those buses once more up-

to-date data were available. We affirmed the district court’s

order in Labor/Community. 263 F.3d at 1051.

On January 12, 2004, the Special Master promulgated

another order addressing measures necessary for MTA to

achieve compliance with the load factor targets. The “Final

Order on Remedial Service Plan to Meet 1.25 and 1.2 Load

Factor Target Requirements” specified that “[i]n order to

achieve compliance with the Consent Decree and to meet and

maintain the 1.2 [load factor target],” MTA was required to

provide the additional buses and service hours called for by

the Working Group. The Order permitted MTA to meet some

of the additional requirements through changes to existing

services and more efficient scheduling of its existing fleet.

But it required MTA to purchase “the vehicular equivalent of

145 new 40-seat expansion buses” and to provide “an addi-

tional 290,145 annual in-service hours.” The Final Order

stated that providing this expanded service, along with the

other improvements specified, would constitute “substantial

compliance with the load factor targets of the Consent Decree

and create a presumption that [its] expansion bus procurement

requirements . . . have been met.”

D. The District Court’s Ruling

In February 2006, the Special Master resigned. Although

BRU and MTA agreed on a replacement, the district court did

not appoint a new Special Master, citing the limited “amount

of time remaining before the Court is divested of jurisdiction

over the . . . Decree.” The court indicated, however, that if its

“jurisdiction is extended, it will revisit this issue.”3

3

BRU asserts that the district court’s failure to appoint a new Special

Master violates the decree. Neither BRU nor MTA timely appealed that

order, so we lack jurisdiction to review it. See 28 U.S.C. § 2107.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5215

After the district court declined to appoint a new Special

Master, BRU filed motions to extend the duration of the

decree and for contempt sanctions.4 The district court denied

both. It concluded that contempt sanctions were inappropriate

because BRU had failed to satisfy its burden of “establish[-

ing], by clear and convincing evidence, that MTA either

failed to substantially comply with the Final Order or failed

to take all reasonable steps to insure compliance with the

Final Order.” On the contrary, the court held, “it is clear that

MTA has substantially complied, and taken all reasonable

steps within its power to insure compliance, with the Final

Order.”

Moreover, the district court stated, extension of the decree

was unnecessary because the “Decree did not require perfec-

tion,” and “[d]espite an increasing ridership, increasing traffic

congestion and fiscal constraints, MTA has substantially com-

plied with the Consent Decree while maintaining fares at rea-

sonable levels.” The district court concluded that the decree

“has served its purpose and will not be extended.” BRU

timely appealed.

II. Standard of Review

We review a district court’s interpretation of a consent

decree de novo, with “deference . . . based on the court’s

extensive oversight of the decree from the commencement of

the litigation to the current appeal.” Nehmer v. U.S. Dep’t of

Veterans Affairs, 494 F.3d 846, 855 (9th Cir. 2007). Both a

district court’s refusal to extend a consent decree and its

denial of a motion for contempt are reviewed for abuse of dis-

cretion. See Thompson v. U.S. Dep’t of Hous. & Urban Dev.,

404 F.3d 821, 827 (4th Cir. 2005); Hallett v. Morgan, 296

4

BRU originally brought motions to extend the duration of the decree

and for contempt before the Special Master in 2004. The Special Master

denied the former, without prejudice, as premature; the latter remained

pending at the time of his resignation.

5216 LABOR/COMMUNITY v. L.A. COUNTY MTA

F.3d 732, 749 (9th Cir. 2002); David C. v. Leavitt, 242 F.3d

1206, 1210 (10th Cir. 2001); Holland v. N.J. Dep’t of Corr.,

246 F.3d 267, 281 (3d Cir. 2001); Vanguards of Cleveland v.

City of Cleveland, 23 F.3d 1013, 1017 (6th Cir. 1994). A dis-

trict court abuses its discretion when “its equitable decision is

based on an error of law or a clearly erroneous factual find-

ing.” Kenney v. United States, 458 F.3d 1025, 1032 (9th Cir.

2006).

III. Discussion

A. Extension of the Decree

[1] By its express terms, the decree provided for the district

court’s retention of jurisdiction over compliance with the

decree only until October 29, 2006, ten years after its execution.5

Because the decree contains an express expiration date for the

court’s retention of jurisdiction, any change to that date

entails a modification of the decree. See Thompson, 404 F.3d

at 824 (holding that extension of a consent decree’s termina-

tion date required modification of the decree). The first issue,

then, is whether, and under what conditions, a modification of

the decree is permitted.

[2] To answer this question, we turn first to the decree

itself. See United States v. Asarco Inc., 430 F.3d 972, 980 (9th

5

BRU argues that “[t]he Decree contains no termination date” and there-

fore that the district court lacked the discretion to end its jurisdiction until

MTA complied fully with the terms of the decree. BRU did not raise this

issue before the district court and we generally will not consider an issue

raised for the first time on appeal. See Bolker v. Comm’r, 760 F.2d 1039,

1042 (9th Cir. 1985). BRU argues that the issue is one of law and can be

resolved on the record as it presently exists. We decline to exercise our

discretion to consider the issue because it may turn upon facts that MTA

did not have an opportunity to develop before the district court, namely,

extrinsic evidence of the parties’ intent. See id. (declining to address issue

not raised below because of possibility of relevant facts not developed in

the record).

LABOR/COMMUNITY v. L.A. COUNTY MTA 5217

Cir. 2005) (noting that the meaning of “[a] consent decree,

like a contract, must be discerned within its four corners”).

According to Section VI of the decree, modification of the

decree is permitted only if the party seeking modification

establishes that (1) “a significant change in circumstances

warrants revision” and (2) “the proposed revision or revisions

are suitably tailored to the changed circumstances.” The

decree further provides that modification “may be warranted

when changed factual conditions make compliance with the

Consent Decree unworkable or substantially more onerous,

and when the changed factual conditions were unforeseen at

the time of the entry into this Consent Decree.” Perhaps not

surprisingly, these requirements are essentially identical to

those articulated by the Supreme Court in Rufo v. Inmates of

Suffolk County Jail, 502 U.S. 367, 393 (1992), and applied by

this Court in Asarco and other cases involving modifications

to consent decrees. See Asarco, 430 F.3d at 979; Hook v. Ari-

zona, 120 F.3d 921, 924 (9th Cir. 1997). So, as provided both

by the decree and by the Rufo case law, BRU’s requested

modification — i.e., extension of the district court’s jurisdic-

tion over the decree — is warranted only if the following four

conditions are met. First, BRU must establish that a “signifi-

cant change either in factual conditions or in the law”

occurred after execution of the decree. See Asarco, 430 F.3d

at 979. Second, it must demonstrate that the change was not

“anticipated at the time it entered into [the] decree.” Id. Third,

it must show that the changed factual circumstance makes

“compliance with the consent decree more onerous, unwork-

able, or detrimental to the public interest.” Id. (internal cita-

tions omitted). Finally, the proposed extension of the decree’s

termination date must be “suitably tailored to resolve the

problems created by the changed . . . conditions.” Id.

[3] The failure of substantial compliance with the terms of

a consent decree can qualify as a significant change in cir-

cumstances that would justify the decree’s temporal exten-

sion. See Thompson, 404 F.3d at 828-29; David C., 242 F.3d

at 1212; Vanguards of Cleveland, 23 F.3d at 1019-20; Hol-

5218 LABOR/COMMUNITY v. L.A. COUNTY MTA

land, 246 F.3d at 283-84. Here, however, after overseeing this

case for more than twelve years, the district court concluded

that MTA had substantially complied with the decree. The

court ruled as follows:

For the past ten years — the entire term of the Con-

sent Decree — the parties have disagreed as to how

to implement the Consent Decree, how to reach its

objectives, and how to measure its success. In hind-

sight, the Consent Decree was a less than perfect

document. As a result, it is impossible to achieve

absolute compliance. Indeed, the Special Master

informed the parties that the Consent Decree did not

require perfection. [Citation] However, it was possi-

ble for MTA to substantially comply with the Con-

sent Decree. Despite an increasing ridership,

increasing traffic congestion and fiscal constraints,

MTA has substantially complied with the Consent

Decree while maintaining fares at reasonable levels.

The Consent Decree has served its purpose and will

be not extended. . . . As a result of the Consent

Decree and the efforts of all of the parties, the qual-

ity of life has improved for Los Angeles’s public

transit dependant poor population.

[4] The court’s finding that the decree “had served its pur-

pose” reflected a conclusion that it was no longer necessary

to involve the federal courts in the day-to-day operation of the

Los Angeles County bus system. The district court, armed

with a decade of knowledge about the case, was uniquely

positioned to determine whether there had been substantial

compliance. We accord that court’s decision deference on this

issue. See Thompson, 404 F.3d at 827 (noting deferential stan-

dard of review in institutional reform cases and stating that

“[o]ver time, the district court gains an intimate understanding

of the workings of an institution and learns what specific

changes are needed within that institution in order to achieve

the goals of the consent decree” (quoting Navarro-Ayala v.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5219

Hernandez-Colon, 951 F.2d 1325, 1338 (1st Cir. 1991))); see

also Ruiz v. Lynaugh, 811 F.2d 856, 861 (5th Cir. 1987) (dis-

cussing deference due district court in institutional reform

cases “because it is intimately involved in the often complex

process of institutional reformation” and “has the personal

knowledge, experience, and insight necessary to evaluate the

parties’ intentions, performances, and capabilities”).

[5] Moreover, it is BRU’s burden to show otherwise. BRU

must demonstrate that MTA failed to substantially comply

with the decree in order to justify its extension. Asarco, 430

F.3d at 980 (stating that burden is on the moving party). In

arguing that MTA’s level of compliance was insubstantial,

BRU focuses exclusively on just one of the decree’s several

requirements, and uses an imperfect and misleading metric to

evaluate compliance. Further, BRU ignores the many ways in

which MTA met or exceeded its obligations.

Although the underlying data measuring bus overcrowding

are not in dispute, the parties interpret that data in vastly dif-

ferent ways. BRU argues that the data demonstrate compli-

ance rates as low as 9% with the 1.20 load factor target during

2005 and 2006. Meanwhile, MTA argues the same data sup-

ports the conclusion that it achieved a 94-99% compliance

rate with the load factors during the same time period. In

some sense, both figures are correct.

[6] BRU’s compliance figures are based on the standard set

forth in the decree for identifying instances of violations of

the load factor targets. According to the decree, peak load fac-

tors are to be determined “by computing the highest ratio of

total number of passengers to total number of seats achieved

during any 20 minute weekday peak period in the peak direc-

tion of travel on each bus line.” Under this metric, if a bus

line exceeds the load factor just once during a given quarter,

that line is deemed noncompliant for the entire quarter, even

if that line met the target at every other measurement that

quarter. MTA argues that this standard greatly overstates its

5220 LABOR/COMMUNITY v. L.A. COUNTY MTA

level of noncompliance, and it offers its own figures to com-

pensate for this limitation. MTA states that in 2005, it moni-

tored 123,154 20-minute time periods and found that 96.89%

of those periods experienced no load factors above the 1.20

target.

[7] BRU correctly notes that the figures it cites are based

on the compliance standard written into the decree and

affirmed by this court in Labor/Community. 263 F.3d at 1048-

49. But that standard measures only strict compliance with the

load factor targets — not compliance with the decree overall

— and does so in an imprecise manner. That coarse-grained

metric is useful for certain types of analyses, such as deter-

mining whether there has been full and absolute compliance

(MTA concedes there has not been), but it is not particularly

helpful in measuring levels of compliance below 100%, and

it fails to accurately capture the extent to which MTA did

meet the targets during the relevant time periods.

[8] If the question here were simply whether MTA had

achieved full compliance with the decree, we would use

BRU’s proposed standard. But the question is whether there

was substantial compliance, a less precise standard that can-

not be satisfied by reference to one particular figure, while

ignoring alternative information. Our analysis requires we do

more than simply count the number of technical deviations

from the decree. Instead, we must determine, using a holistic

view of all the available information, whether MTA’s compli-

ance with the Decree overall was substantial, notwithstanding

some minimal level of noncompliance.

[9] In addition to using an imperfect metric to evaluate

compliance with the load factor targets, BRU also focuses

narrowly on that one requirement, as does the dissent, at the

expense of giving due weight to the various other require-

ments under the decree which MTA met, and in some cases,

exceeded. There is no question that the reduction of bus over-

crowding was an important part of the decree. But so were

LABOR/COMMUNITY v. L.A. COUNTY MTA 5221

other requirements. As BRU’s counsel described, the decree

imposes three “essential” and “core” requirements on MTA.

These are the reduction in bus overcrowding through the load

factor targets, new service through an expedited pilot project

followed by a five-year new service plan, and a roll-back and

lowering of bus fares for at least five years. MTA exceeded

its obligations as to the bus fare and pass requirements, main-

taining fares at specified levels for years longer than it was

required to do so. And MTA has now met its obligations relat-

ing to new service requirements. To give some idea of the

extent of MTA’s efforts, since the start of the decree, it has

added 1.2 million in-service hours annually, and added over

545 buses to its peak fleet in order to expand its bus service.

BRU argues that MTA’s achievements in these areas are out-

weighed by its imperfect compliance with the load factor tar-

gets. Of course, there is no precise formula describing how

best to weigh the various obligations under the decree, and

there is no indication that the district court abused its discre-

tion in weighing them as it did.

We note that the de minimis level of noncompliance here

is nowhere close to the near total noncompliance in cases in

which courts concluded that extensions of the consent decrees

were warranted. In Thompson, 404 F.3d at 834, there was a

“near total failure” of some defendants to comply with their

obligations. Those defendants failed to do “almost [anything]

that they were required to do under the Decree[.]” Id. at 828;

see also David C., 242 F.3d at 1212-13 (noting that defendant

was “20 percent in compliance and 80 percent in noncompli-

ance”). In contrast, aside from the imperfect compliance with

the load factor targets, MTA complied fully with its numerous

obligations under the decree.

[10] We hold that BRU has failed to demonstrate that the

district court abused its discretion in finding that MTA had

substantially complied with the consent decree. The evidence

presented supported the district court’s finding that the imper-

fections with respect to load factor targets were de minimis in

5222 LABOR/COMMUNITY v. L.A. COUNTY MTA

relation to the overall scheme of things. Because the first

prong of the Rufo test fails, we hold that the district court did

not abuse its discretion in refusing to extend the decree.

[11] Our decision is consistent with the principle that fed-

eral court intervention in state institutions is a temporary mea-

sure and may extend no longer than necessary to cure

constitutional violations. See Bd. of Ed. of Okla. City Pub.

Sch. v. Dowell, 498 U.S. 237, 248 (1991); Toussaint v.

McCarthy, 801 F.2d 1080, 1087 (9th Cir. 1986). In this case,

as the district court found, perhaps every last wish and hope

of the decree was not achieved, but the decree accomplished

its essential purposes and the situation improved greatly.

These improvements strongly inform our assessment that the

district court was within its discretion in holding that it no

longer needed to oversee the running of the Los Angeles

County bus system.

B. BRU’s Motion for Contempt Sanctions

BRU also contends that the district court abused its discre-

tion in denying its motion for civil contempt sanctions against

MTA for MTA’s alleged failure to comply with the 2004

Final Order. For issuance of a contempt order against MTA

to be proper, BRU must establish “(1) that [MTA] violated

the court order, (2) beyond substantial compliance, (3) not

based on a good faith and reasonable interpretation of the

order, (4) by clear and convincing evidence.” In re Dual-Deck

Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695

(9th Cir. 1993). BRU argues that MTA violated the Final

Order in two ways: (1) by failing to allocate all of the newly

purchased buses and additional service hours to peak time

periods, and (2) by failing to hire any new mechanics.

The Final Order required that, among other things, MTA

purchase “the vehicular equivalent of 145 new 40-seat expan-

sion buses” and add an additional 290,145 annual in-service

hours. MTA did add 145 buses and 298,985 in-service hours

LABOR/COMMUNITY v. L.A. COUNTY MTA 5223

to the bus system. But according to BRU, MTA violated the

Final Order by failing to allocate all of these resources to peak

time periods. MTA does not dispute that some of the new

hours and buses went to non-peak times, but contends that the

Final Order gave MTA discretion regarding how to perform

the allocation.

[12] Upon review of the Final Order, it is not immediately

obvious whether the hours and buses were required to be allo-

cated to peak time periods. There is no express language

directing MTA to do so and the Final Order provides MTA

with “discretion” to deploy the buses “throughout the bus sys-

tem.” Even assuming that MTA violated the Final Order by

allocating some resources to non-peak time periods, the dis-

trict court was within its discretion in ruling that contempt

sanctions were not warranted. There is no evidence that

MTA’s conduct was “not based on a good faith and reason-

able interpretation of the order.” See id.

[13] While MTA did not add all of the additional in-service

hours to peak periods, it did add an estimated 162,947 annual

in-service hours during peak periods and did increase its total

annual in-service hours by more than the amount required by

the Final Order. MTA also added 145 buses to its fleet as

required (though it is not clear how many of those buses were

added to peak time periods). These efforts rebut any inference

that MTA was acting in bad faith. In addition, even if MTA’s

interpretation of the Final Order were ultimately deemed

incorrect, it was not unreasonable. MTA is right that the Final

Order does not literally state that the additional hours and

buses must be added during peak times.

[14] BRU also argues that MTA’s failure to hire new

mechanics violated the Final Order, which mandated that

MTA “[h]ire additional mechanics as needed to meet the

expansion service requirements[.]” The language “as needed”

renders the directive conditional, and we have no basis to

second-guess MTA’s conclusion that it had no need to hire

5224 LABOR/COMMUNITY v. L.A. COUNTY MTA

more mechanics. It is, for example, undisputed that MTA

added nearly 300,000 annual in-service hours after Special

Master Bliss issued the Final Order. The fact that MTA

increased its in-service hours so significantly without adding

mechanics lends substantial credence to its argument that no

new mechanics were needed to meet its obligations under the

Final Order.

[15] We hold that BRU has not demonstrated that the dis-

trict court abused its discretion in declining to sanction MTA

for its alleged violations of the Final Order.

IV. Conclusion

For the foregoing reasons, the District Court’s denial of

Plaintiffs’ Motion to Extend and its denial of Plaintiffs’

Motion for Civil Contempt Sanctions are AFFIRMED.

BERZON, Circuit Judge, dissenting:

I respectfully dissent.

The defendants simply did not comply, substantially or oth-

erwise, with the Consent Decree’s requirements for relieving

the overcrowding on buses. The Consent Decree and the asso-

ciated orders from the Special Master spell out in detail the

method by which the parties agreed to measure bus over-

crowding and define performance targets that MTA is

required to meet. Critically, the Decree also expressly prohib-

its MTA from seeking to modify the Decree for changed cir-

cumstances because of the difficulty meeting targets as set out

in the Decree. See Consent Decree § II.A.4 (“The failure of

MTA to meet target load factors shall not be deemed a

changed or unforeseen factual condition for purposes of seek-

ing a modification of this Consent Decree by MTA”).

LABOR/COMMUNITY v. L.A. COUNTY MTA 5225

Yet, it is just such a modification that MTA has in effect

granted to itself, and that the majority is willing to counte-

nance. Unable to comply with the load factor targets defined

in the Decree, MTA devised its own measure of compliance

and then announced that it had met that measure. The district

court went along, without explaining why the defendants were

entitled to rewrite a provision to which they had consented

and which they had contractually agreed not to try to modify.

Under these circumstances, I am quite certain, it was an

abuse of discretion for the district court to terminate its juris-

diction to enforce the Decree. To rule otherwise is to sanction

a governmental agency’s flaunting of the law and breaking of

solemn promises. I can agree to neither.

1. The Consent Decree

The majority’s account of the background of this case is

accurate but incomplete.

First, the Decree identified the reduction of overcrowding

on County buses as one of its “critical objective[s].” The

means for accomplishing this objective, and, more impor-

tantly, the interpretation and enforceability of provisions in

the Decree designed to achieve this goal have long been a

subject of dispute between the parties. See, e.g., Labor/

Community Strategy Ctr. v. L.A. County Metro. Trans. Auth.,

263 F.3d 1041, 1043 (9th Cir. 2001) (“Labor/Community”). In

this appeal, BRU once again contests MTA’s compliance with

Section II.A of the Decree, which committed MTA to

“[r]educing [o]vercrowding [b]y [a]dding [n]ew [s]ervice.”

As the majority recites, to measure compliance with this

requirement, the Decree set forth specific “load factor tar-

gets,” with specified compliance dates for each target, and

provided MTA with “discretion in determining how the tar-

gets w[ould] be met.” See Maj. Op. at 5211-12 for an explana-

tion of the “load factor” concept. As the majority also

5226 LABOR/COMMUNITY v. L.A. COUNTY MTA

explains, the Decree included procedural mechanisms to mon-

itor implementation and enforcement. See Maj. Op. at 5212.

It is notable — but not noted by the majority, except in

passing, see Maj. Op. at 5213-14 — that this is the second

time, not the first, that MTA has come to this court to com-

plain that the load factor target terms of the Decree are too

harsh. In Labor/Community, MTA argued that the district

court had erred in interpreting the load factor target require-

ments of the Decree. See 263 F.3d at 1048. The targets, MTA

asserted, “were simply performance goals that MTA promised

to use its ‘best efforts’ to meet, but with which the [D]ecree

only required ‘substantial compliance.’ ” Id. at 1048. We dis-

agreed, holding that MTA’s interpretation of what the Decree

required “[was] refuted by a reading of the [D]ecree as a

whole.” Id. The Decree, we observed, “set out a mathemati-

cally precise method of measuring bus overcrowding and a

detailed schedule of load factor targets that were to be met by

specific dates.” Id. at 1048-49. Therefore, “[t]o say that

MTA’s ‘best efforts’ are enough for compliance would be to

ignore the precise load factor schedule set out in the decree.”

Id.

As I see this case, having failed to persuade us in Labor/

Community that the load factor targets were only “perfor-

mance goals” to be used to evaluate MTA’s “best efforts,”

MTA went forward as if that is all they were. The district

court went along with this subversion of the Decree, and now

the majority does as well.

2. The Special Master’s Final Order

In 2003, two years after we issued the Labor/Community

opinion, the question of MTA’s failure to meet the load factor

targets was once again before the Special Master. At that

point, “[a]lthough the MTA ha[d] made significant service

improvements,” it was “undisputed that, during weekday peak

LABOR/COMMUNITY v. L.A. COUNTY MTA 5227

hours,1 the MTA did not meet the [2000 load factor target of

1.25] on 72 non-exempt bus lines, and did not meet the [2002

load factor target of 1.2] on 75 non-exempt bus lines.” More-

over, the BRU/MTA Working Group had concluded that

meeting the peak hour load factor targets would “require the

addition of 185 buses and 425,500 revenue service hours.”

Once again, the parties could not agree on a specific reme-

dial plan.2 Therefore, after first issuing a proposed order to

determine points of agreement and elicit modifications, the

Special Master promulgated a “Final Order on Remedial Ser-

vice Plan to Meet 1.25 and 1.2 Load Factor Target Require-

ments” (the “Final Order”). As the majority recounts, see Maj.

Op. at 5214, the Final Order spelled out that “[i]n order to

achieve compliance with the Consent Decree and to meet and

maintain the 1.2 [load factor target],” MTA was required to

provide the additional buses and service hours the Working

Group had identified as necessary, and specified how it might

do that. In addition, although the Final Order stated that the

MTA would have discretion both in “how to deploy and

schedule” the new buses and in allocating the additional in-

service hours “on specific bus lines and during specific time

periods throughout the bus system,” the Order also made clear

that “MTA should deploy this additional service to meet the

objective of alleviating bus overcrowding to achieve the 1.2

[load factor target] on each and every bus line.” The Final

Order further stated that providing this expanded service,

along with the other improvements specified, would constitute

“substantial compliance with the load factor targets of the

Consent Decree and create a presumption that [its] expansion

1

Data for off-peak time periods was not available at the time.

2

For example, although the Working Group had determined that MTA

needed to add 185 buses to the relevant bus routes, MTA asserted that it

could achieve the functional equivalent of adding 185 buses (or some por-

tion thereof) by scheduling its existing fleet more efficiently. It therefore

contended that it did not need physically to purchase 185 new buses. BRU

contested these assertions.

5228 LABOR/COMMUNITY v. L.A. COUNTY MTA

bus procurement requirements . . . have been met.” In other

words, the Final Order determined what would constitute

“substantial compliance.” MTA’s self-conferred abandonment

of the load factor targets was not sanctioned by the Final

Order.

3. The District Court’s Opinion

After the district court declined to appoint a new Special

Master, BRU filed motions to extend the duration of the

Decree and for contempt sanctions; the district court denied

both.3 Critically, the paragraph the majority quotes on page

5218 from the district court’s opinion is all the explanation

the district court provided. Why the district court thought that

“MTA has substantially complied” even though it entirely

failed to comply according to the measure carefully included

in the Decree, affirmed by this court, and elaborated upon in

the Special Master’s Final Order, we were not told.

As the majority holds, see Maj. Op. at 5217, lack of sub-

stantial compliance qualifies as a significant change in cir-

cumstances justifying modification of a consent decree by

extending the length of judicial oversight. In my view, the dis-

trict court’s unexplained conclusion that there was substantial

3

I note that BRU suggests that the Decree has no termination date and

so extends beyond the ten year period. The Decree is in fact silent with

respect to its overall termination date. Compare Holland v. New Jersey

Dept. of Corrections, 246 F.3d 267, 279 (3rd Cir. 2001) (quoting the con-

sent decree, which explicitly and separately defined both the duration of

the district court’s jurisdiction and the duration of the decree as a whole).

It is therefore probable that the Decree is enforceable as a contract even

if not as a judicial decree. See, e.g., Board of Educ. of Oklahoma City v.

Dowell, 498 U.S. 236, 244-46 (1991) (holding that a desegregation decree

extended beyond the district court’s termination of its jurisdiction). Any

such contractual enforcement issue is, however, beyond the scope of the

current appeal.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5229

compliance has no basis in the record, and was therefore

clearly erroneous.4

Before turning to a discussion of MTA’s compliance with

the Decree since 2004, I note that the majority’s reliance on

the district court’s “decade of knowledge about the case,” and

its characterization of the district court as “uniquely posi-

tioned to determine whether there had been substantial com-

pliance,” Maj. Op. at 5218, is grounded largely in fiction.

Until his resignation in early 2006, Special Master Donald

Bliss played the central role in monitoring MTA’s compliance

with its Decree obligations. For example, prior to issuing the

1999 Remedial Order that this Court upheld, Bliss conducted

a painstaking bus line-by-bus line review of MTA’s perfor-

mance with respect to the 1.35 load factor target. The Order

itself included an appendix which identified problems and

proposed solutions for individual lines. The Special Master’s

87-page 2004 Final Order likewise included detailed findings

regarding MTA’s compliance with the load factor targets and

mandated highly specific remedies. In addition to these

orders, Special Master Bliss issued literally dozens of detailed

opinions and memoranda related to compliance issues. So, in

fact, it was the Special Master, not the district court judge,

who had been overseeing the Consent Decree on a day-to-day

4

We have previously held in the context of a party’s compliance with

a federal regulation, that the “issue of substantial compliance is a mixed

question of law and fact” that we review de novo. See Louisiana-Pacific

Corp. v. ASARCO Inc., 24 F.3d 1565, 1576 (9th Cir. 1994). I nonetheless

apply the more deferential clearly erroneous standard to our review of the

district court’s determination that MTA had substantially complied with

the Decree for two reasons. First, BRU itself asks us to apply that stan-

dard. See Appellant’s Opening Brief at 6 (“The factual findings them-

selves, such as the nature of the data and what the data meant, and the

resulting state of compliance with this Decree, are addressed by a review-

ing court under the clearly erroneous standard.”) (emphasis added). Sec-

ond, my review of the record indicates that the districts court’s decision

warrants reversal even under the more deferential standard. Whether we

apply the clearly erroneous standard or a de novo standard is therefore

irrelevant.

5230 LABOR/COMMUNITY v. L.A. COUNTY MTA

basis, who was intimately familiar with both its provisions

and its on-the-ground application, and who had issued the key

orders interpreting and implementing the Decree.

Moreover, with the resignation of the Special Master and

Judge Hatter’s refusal to appoint a new one (even though the

parties had agreed on a replacement), specific findings of the

type that permeated Special Master Bliss’s orders were not

available to the district court in deciding the motions that

underlie this appeal and are not available to us now. Bliss

himself does not appear to have updated his 2004 analysis of

MTA’s compliance with the load factor targets before his res-

ignation in 2006. And, although it is possible that the district

court performed a detailed review of MTA’s compliance

before issuing its order denying BRU’s motion to extend, its

terse opinion does not reveal that it did, suggest what that

review entailed, or indicate what facts were found.5

At a minimum, the majority should have remanded for

some elucidation of the district court’s fact findings and legal

reasoning before accepting its unexplained conclusions. But

the majority does not do so.

4. MTA’s Compliance with the Load Factor

Requirements

Notwithstanding the limitations just discussed, the evidence

that is available clearly reveals that MTA has not substantially

complied with its commitments under the Decree. Specifi-

cally, MTA abysmally failed to meet the current load factor

target, a “critical objective” of the Decree. Several facts dem-

onstrate the broad extent of MTA’s noncompliance.

5

Because the parties did not timely appeal the district court’s decision

not to appoint a replacement special master, we cannot now reverse it. See

28 U.S.C. § 2107. Were the issue before us, I would hold that the failure

to appoint the new special master agreed upon by the parties was, given

the terms of the Consent Decree, an abuse of discretion.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5231

First, as of the 2004 Final Report, MTA did not dispute that

it had failed to meet the 1.20 load factor target in 2002 and

2003 on a significant number of its bus lines during peak

hours, and that remedial measures were warranted. This con-

clusion, reached by the Joint Working Group, affirmed by the

Special Master, and not appealed to the district court by

MTA, rested on an analysis of line-by-line data collected by

MTA.

Second, the updates to this data reveal that MTA remains

substantially noncompliant. For example, data from 2005 and

2006 show that MTA failed to meet the 1.20 target on approx-

imately 80 out of 90 monitored bus lines, a noncompliance

rate of almost 90%. See David C. v. Leavitt, 242 F.3d 1206,

1212 (10th Cir. 2001) (concluding that an 80% noncompli-

ance rate qualified as “substantial noncompliance” and mer-

ited modification of the decree); Vanguards of Cleveland v.

City of Cleveland, 23 F.3d 1013, 1019 (6th Cir. 1994) (hold-

ing that noncompliance rates of between 25% and 40% were

substantial enough to warrant modification under Rufo v.

Inmates of Suffolk County Jail, 502 U.S. 367 (1992)).

Tellingly, MTA does not dispute this data or suggest that

it was either collected or analyzed in a manner different from

that employed by the Working Group and the Special Master

in 2004. Rather, MTA suggests — and the majority agrees —

that an entirely different approach can be used to analyze the

data for purposes of determining substantial compliance with

the Consent Decree, and that this new approach demonstrates

that MTA is now in substantial compliance with the targets.

There are, however, several problems with the approach

MTA espouses and the majority — blindly, with no inquiry

at all into its premises — relies upon. First, MTA’s methodol-

ogy, even if accepted at face value, does not reveal an identi-

fiable change in the rate of MTA’s compliance with the load

factor targets between 2002, a period for which MTA agreed

that it was not substantially compliant, and now, when it

5232 LABOR/COMMUNITY v. L.A. COUNTY MTA

claims to have achieved substantial compliance. For instance,

according to MTA’s new methodology and its own calcula-

tions, the agency was in compliance with the 1.20 load factor

target 96.38% of the time in the third quarter of 2005 and

95.99% of the time in the fourth quarter of 2005. MTA’s own

calculations using this same methodology indicate, however,

that MTA was 96.14% compliant with the 1.20 load factor

target in the third quarter of 2002, 95.28% compliant in the

fourth quarter of that year, and 95.97% compliant in the third

quarter of 2003. Indeed, a comparison of MTA’s revised 2002

and 2003 calculations with its 2005 figures shows virtually no

change in MTA’s rate of compliance. Yet, as discussed above,

MTA did not dispute in 2004 that it was not substantially

compliant with the targets in 2002 and 2003. In other words,

MTA’s new methodology supports BRU’s argument that

MTA is no more compliant with the load factor targets now

than it was when the Special Master issued the Final Order,

finding that there had not yet been substantial compliance and

setting out standards for judging substantial compliance in the

future.6

In addition to failing to demonstrate any increase in its rate

of compliance with the load factor targets, MTA’s proposed

methodology suffers from fundamental conceptual deficien-

cies. MTA readily acknowledges that its approach provides an

aggregate measure of compliance with the 1.20 target, by

averaging performance across bus lines. However, as Special

Master Bliss repeatedly stated, “Section II of the Decree

requires that the load factors be met on each and every bus

line.” Final Order at 46 n.39 (emphasis added). Thus, MTA’s

methodology does not provide adequate information for

adducing its compliance with the Decree.

6

In support of its argument that it need not achieve 100% compliance

with the targets, MTA regularly cites statements by Special Master Bliss

that “the Consent Decree does not require perfection.” Whatever implica-

tions these statements may have, however, MTA has not demonstrated that

it is any closer to achieving “perfection” or near “perfection” than it was

in 2004.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5233

The Authority’s approach also averages peak and non-peak

hour data. Once again, such averaging runs counter to the

express language of the Decree, which specifically requires

that the agency meet the load factor targets during both peak

hours and non-peak hours. In other words, MTA cannot dem-

onstrate substantial compliance by averaging low compliance

rates in peak hours with high compliance rates in non-peak

hours. It must achieve high compliance rates on each relevant

bus line during both peak and non-peak periods to substan-

tially comply with Decree, as that — not just some average

improvement — is what the Decree required.

Despite these significant problems with its approach, MTA

contends that its method is superior to BRU’s because,

according to MTA, BRU’s methodology “misleading[ly]”

identifies a bus line as noncompliant for a given quarter if that

line exceeds the target even once in that quarter. MTA’s argu-

ment is unpersuasive for two reasons. First, the Special Mas-

ter agreed with BRU that a single measured exceedence

renders a bus line noncompliant. See Final Order at 7 (For

example, 57 monitored bus lines exhibited one or more excee-

dences above 1.35 LFT [in 2003Q3] . . . Moreover, 40 moni-

tored bus lines exhibited one or more exceedences above 1.5

[load factor target.]”) (emphasis added). Second, MTA’s own

methodology suggests that each line exceeds the load factor

target more than once per quarter. For example, in the first

quarter of 2005, MTA’s data show there were 271 measured

exceedences across 65 monitored bus lines. This number of

exceedences equates to just over 4 measured exceedences per

line per quarter. The number of exceedences on these 65 lines

jumps to 532, or more than 8 per line per quarter, by the

fourth quarter of that same year. In short, even if MTA is cor-

rect in characterizing BRU’s methodology as “misleading” —

a characterization the majority echoes, even though the meth-

odology is the one employed by Special Master Bliss — its

own data and methodology suggest that it frequently exceeds

the load factor targets.

5234 LABOR/COMMUNITY v. L.A. COUNTY MTA

The majority does not recognize any of these deficiencies

in MTA’s statistical showing, maintaining that the parties

simply “interpret [the] data” in different ways, and that “both

[parties’] figures are correct.” Maj. Op. at p. 5219. That sim-

ply cannot be.

The load factor targets, measured as BRU measures them,

are in the Decree; they are not simply external measures of

compliance with more general goals contained in the Decree.

So, in effect, far from “using a holistic view of all available

the information,” Maj. Op. at 5220, to judge compliance with

the Decree, the majority would sanction an implicit, unilat-

eral, substantive modification of the consent decree at the

behest of the defendants, changing the method agreed upon by

the parties for determining how the overcrowding problem

would be solved. Moreover, the Decree, as interpreted by the

Special Master with the approval of this court, prescribed the

manner in which the targets are to be understood and applied.

To call that prescribed methodology an “imperfect and mis-

leading metric,” Maj. Op. at 5219, and then ignore it is to

rewrite the Decree. It is that metric, imperfect or otherwise,

the parties chose and the district court adopted, not some

other.

Using the Decree’s methodology, the defendants were not

in substantial compliance. Only by altering the decree’s

agreed-upon methodology can one come to an opposite con-

clusion. Put another way, although the methodology defen-

dants suggest and the majority would sanction could have

been the agreed-upon way of curing the overcrowding prob-

lem, it was not. That is why it is only by substantively modi-

fying the consent decree that the defendants could have

reached the result they support and that the majority approves.

But the defendants did not move for such a modification.

The reason, in all likelihood, is that they were precluded by

the decree itself from doing so.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5235

Section II.A.4 of the decree provides that “The failure of

MTA to meet the target load factors shall not be deemed a

changed or unforeseen factual condition for purposes of seek-

ing a modification of the Consent Decree by MTA.” That the

parties included this unusual provision in the consent decree

indicates how important the precisely delineated target load

factors provided for in the decree were to the bargain struck.

In the end, MTA did fail to meet the target load factors the

parties had agreed upon, not just here and there but substan-

tially. In other words, MTA did not substantially comply with

the terms of the Decree. Period. Instead, MTA sought to

prove substantial compliance by formulating a different mea-

sure of load improvement than the parties’ bargain required.

Allowing that alteration would be tantamount to a substantive

modification of the decree in the defendant’s favor.

But no modification has been requested, and no basis for

one has been suggested other than the contractually forbidden

consideration — that MTA did not meet the target load fac-

tors provided for in the consent decree. To backdoor the con-

sent decree’s prohibition on modification by unilaterally

failing to comply throughout the period of the decree and then

claiming substantial compliance through a different measure

than the parties agreed upon simply flaunts the rule of law.

That the majority approves this lawless stratagem by a public

body can only encourage others to engage in similarly bald

evasion of judicial decrees arrived at after lengthy negotiation

and approved by the courts. It is grave concern about sanc-

tioning such evasion that motivates this dissent, even more so

than the quite serious indignities many people in Los Angeles

suffer when using the City’s transportation system and that

the Decree was supposed to alleviate.

In an alternative argument not addressed by the majority,

MTA asserts that, regardless of what the data about actual

overcrowding shows, it substantially complied with the load

factor targets of the Decree by implementing the capacity

5236 LABOR/COMMUNITY v. L.A. COUNTY MTA

expansion requirements imposed on it by Special Master Bliss

in the Final Order. These requirements included the purchase

of 145 40-seat buses and the addition of 290,145 annual in-

service hours.

Special Master Bliss did indicate that MTA’s implementa-

tion of the requirements just discussed would “constitute good

faith, substantial compliance with the load factor targets of the

Consent Decree” and would “create a presumption that the . . .

requirements of Section II.A of the Decree have been met.”

And BRU does not dispute that MTA added almost 300,000

annual in-service hours since the 2004 Final Order.

The problem with MTA’s position, however, is that it

added 45% of these in-service hours during non-peak time

periods. MTA asserts that this allocation is consistent with the

Final Order because the Order did not specifically state that

the additional hours had to be added at peak times. MTA

maintains that the Decree provided MTA with discretion con-

cerning when to add the hours, and that the non-peak hour

additions therefore give rise to the compliance presumption

alluded to in the Order.

This interpretation of the Final Order is wrong.7 Although

the Final Order inartfully states that “the MTA has discretion

in scheduling [the additional buses and in-service hours] on

specific bus lines and during specific time periods throughout

the bus system,” the Special Master undeniably intended

7

I note that the district court has never provided its own interpretation

of the Final Order’s requirements. In 2004, it affirmed the Final Order in

its entirety in a single sentence. In the 2006 order which gives rise to this

appeal, the district court stated only that “MTA has substantially com-

plied, and taken all reasonable steps within its power to insure compliance,

with the Final Order.” Although we typically review a district court’s

interpretation of a consent decree de novo with “deference . . . based on

the court’s extensive oversight of the decree,” the district court has not

provided a pertinent interpretation of the Final Order to which we might

defer.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5237

MTA to add the additional buses and in-service hours to peak

time periods. The clearest indication of this intent is provided

in the section of the Final Order entitled, “What level of

expansion service should be added to alleviate bus over-

crowding during off-peak hours?” In the section, Special

Master Bliss states that “the Consent Decree also requires that

the load factor targets be met during off-peaks hours.”

(emphasis added). Notwithstanding this requirement, the Spe-

cial Master deferred a decision on MTA’s compliance with

off-peak targets on the grounds that the relevant data were not

yet available. The Special Master then instructed that, once

the data was collected,

The JWG thereafter should apply the remedial meth-

odology and determine the number of off-peak

[expansion service units] to be implemented by the

MTA in the June 2004 service change. Since peak

fleet requirements are greater than off-peak require-

ments, this should not necessitate the procurement of

any additional expansion buses, but it will require an

appropriate increase of bus in-service hours during

the relevant off-peak periods.

Final Order at 59 (emphasis added). In other words, the Spe-

cial Master indicated that, at the time of the Final Order, he

was not yet certain how many additional in-service hours

were required during off-peak periods (although he did

believe that some increase would be necessary). By implica-

tion, his exceedingly specific 290,145 additional in-service

hour requirement must have applied only to peak hours.

This interpretation is further confirmed by the fact that Spe-

cial Master Bliss derived the 145 bus and 290,145 hour

requirements from the Working Group’s conclusion that

MTA needed to add “331 expansion service units [to] the

weekday A.M. peak hours . . . and 453 expansion service

units [to] the weekday P.M. peak hours.” In other words, the

requirements were tied directly to the Working Group’s deter-

5238 LABOR/COMMUNITY v. L.A. COUNTY MTA

mination that MTA needed to expand service during peak

times; the Working Group made no such determination

regarding non-peak periods.

In short, although the Special Master provided MTA with

the discretion to add the 290,000 in-service hours wherever it

chose “throughout the bus system,” and whenever it chose

during peak time periods, MTA was nonetheless required to

add those hours to peak time periods. MTA’s contention to

the contrary is untenable.

I conclude that an analysis of the record leads to only one

reasonable conclusion: MTA remains substantially noncompl-

iant with the load factor targets.

5. MTA’s Compliance with the Other Decree

Requirements

MTA suggests, and the majority in passing agrees, that,

even if MTA did not substantially comply with the load factor

requirements, it nonetheless substantially complied with the

Decree as a whole, because it satisfied other obligations

imposed on it by the Decree. As examples of its success in

meeting the Decree’s other requirements, MTA cites its intro-

duction of a Regional EZ Transit Pass and a Day Pass and

implementation of the Metro Rapid bus network as a form of

new service.

I am not persuaded. The Decree describes the reduction of

bus overcrowding through compliance with the load factor

targets as a “critical objective.” Moreover, the Decree estab-

lishes a “mathematically precise,” Labor/Community, 263

F.3d at 1046, system of targets and deadlines for achieving

this objective, and devotes more text to the load factor

requirements than to most of the other requirements com-

bined. Only those provisions related to bus fares rival the load

factor requirements in apparent importance.

LABOR/COMMUNITY v. L.A. COUNTY MTA 5239

The import of the load factor requirements is further under-

scored by the substantial amount of time the Special Master

and the Working Group devoted to monitoring MTA’s com-

pliance with those requirements and to crafting remedial mea-

sures to cure MTA’s noncompliance. The voluminous pre-

2004 administrative record belies any suggestion that compli-

ance with the load factor targets was not of predominant signifi-

cance.8

In sum, because the load factor targets are such a central

component of the Decree, I cannot accept the majority’s sug-

gestion that compliance with other provisions could outweigh

MTA’s lack of substantial compliance with the targets.

I would hold, therefore, that MTA did not substantially

comply with the Decree’s load factor requirements, and that

this failure qualifies as a significant change in factual circum-

stances sufficient to justify extension of the district court’s

enforcement authority. Under the terms of the Decree, MTA

promised that it would meet the third and final target by June

30, 2002, four full years before the district court’s retention

of jurisdiction ended. As explained above, MTA remains sub-

stantially noncompliant with the Decree’s load factor require-

ments, and therefore failed to adhere to its promise and the

parties’ expectations. Extending the Decree to ensure that the

planned compliance occurs is a natural response to MTA’s

failure.

8

It is also noteworthy that the Special Master downplayed the signifi-

cance of alleged improvements such as the Metro Rapid Service and the

Limited Stop Service. See Final Report at 30, 31 (noting that “bus over-

crowding conditions worsened on Line 111 (Florence Avene) after the

inauguration of Rapid Bus service” and that “[o]vercrowding similarly

persists on Lines 60 (Long Beach Blvd.) and 66 (E. Olympic Blvd.) even

after the introduction of Limited Stop Service”).

5240 LABOR/COMMUNITY v. L.A. COUNTY MTA

6. Conclusion

In short, I would hold that the district court erroneously

concluded that MTA had substantially complied with its obli-

gations under the Decree, and so abused its discretion when

it denied BRU’s motion to extend its jurisdiction to enforce

the Decree. See Kenney, 458 F.3d at 1032. Although I agree

with the majority that a consent decree should extend no lon-

ger than necessary, See Maj. Op. at 5220-21, MTA’s ongoing

failure to comply with a “critical objective” of the Decree

necessitates extension in this case. See Board of Educ. of

Oklahoma City, 498 U.S. at 249-50 (holding that, when decid-

ing whether to dissolve a decree, the district court “should

address itself to whether the [defendant] had complied with

the [consent] decree since it was entered”). I therefore

respectfully dissent.9

9

I concur in the majority’s holding that the district court did not abuse

its discretion in concluding that contempt sanctions are not warranted.