Record and brief — Golden State Transit Corp. v. Los Angeles

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No. 88-840-CFX Title: Golden state Transit Corp., Petitioner

Status: GRANTED Vv.

City of Los Angeles

Docketed: Court: United States Court of Appeals

November 16, 1988 for the Ninth Circuit

Counsel for petitioner: Fasman,Zachary D.

Counsel for respondent: Haggerty,John F.

Entry Date Note Proceedings and Orders

1 Nov 16 1988 G Petition for writ of certiorari filed.

2 Dec 16 1988 Brief of respondent Los Angeles in opposition filed.

3 Dec 21 1988 DISTRIBUTED. January 13, 1989

4 Dec 28 1988 X Reply brief of petitioner Golden State Transit Corp. filed.

6 Jan 13 1989 REDISTRIBUTED. January 19, 1989

8 Feb 6 1989 REDISTRIBUTED. February 17, 1989

9 Feb 21 1989 Petition GRANTED. limited to the following question:

“Whether in the absence of a direct violation of a

federal statute, an allegation that a state statute is

preempted a federal statute is cognizable under 42

U.S.C. Section 1983."

4 %½%½%½%½„%„%„%%%%%% %% %%% %%% %%% %%% % „%%% %%%“

11 Mar 7 1989 Order extending time to file brief of petitioner on the

merits until April 22, 1989.

13 Apr 21 1989 Joint appendix filed.

14 Apr 21 1989 Brief of petitioner Golden State Transit Corp. filed.

12 Apr 22 1989 — curiae of American Trucking Associations, Inc.

filed.

15 May 25 1989 Brief amici curiae of Natl. League of Cities, et al. filed.

16 May 25 1989 Brief of respondent Los Angeles filed.

17 Jun 24 1989 Reply brief of petitioner Golden State Transit Corp. filed.

18 Jul 13 1989 CIRCULATED.

19 Jul 20 1989 SET FOR ARGUMENT TUESDAY, OCTOBER 3, 1989. (1ST CASE)

20 Sep 20 1989 Record filed.

* Certified copy of C. A. Proceedings and briefs received.

21 Sep 28 1989 Record filed.

* Certified copy of original record, 5 volumes, received.

22 Oct 3 1989 ARGUED.

~

PETITION

FOR WRIT OF

CERTIORARI

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

GOLDEN STATE TRANSIT CorRP.,

Petitioner,

V.

City oF Los ANGELES,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ZACHARY D. FASMAN

PAUL, HASTINGS, JANOFSKY

& WALKER

Twelfth Floor

1050 Connecticut Avenue, N.W.

Washington, D.C. 20036

Telephone: (202) 223-9000

Attorney for Petitioner

WILSON - Eras Printing Co., Inc. - 789-0096 - WASHINGTON. D.C. 20001

(i)

114höÿ0ẽ⁵o mu .— &- |

ii

PARTIES TO THE PROCEEDINGS BELOW

All parties to the proceedings below subject to this

petition for a writ of certiorari are set forth in the cap-

tion of the petition.

TABLE OF CONTENTS

TABLE OF AUTHORITIES ..........................................

OPINIONS BELOW a

JURISDICTIONAL STATEMENT...

CONSTITUTIONAL AND STATUTORY PROVI-

SIONS INVOLVED aa

STATEMENT OF THE CASE

REASONS FOR GRANTING THE WRIT

I. REFUSAL TO GRANT A DAMAGE REMEDY

EFFECTIVELY NEGATES THIS COURT’S

DECISION IN GOLDEN STATE TRANS'T

CORP. v. CITY OF LOS ANGELES

II. THE RULING BELOW IS IN DIRECT CON-

FLICT WITH THIS COURT’S INTERPRETA-

TION OF 42 U.S.C. § 1983 AND TACITLY RE-

VERSES THIS COURT’S PRIOR DECISION.

III. THE WRIT SHOULD ISSUE TO RESOLVE

WHETHER SECTION 1983 RELIEF IS AP-

PROPRIATE IN PREEMPTION CASES

CONCLUSION — —

(iii)

Page

13

iv

TABLE OF AUTHORITIES

CASES: Page

Allis-Chalmers Corp. v. Lueck, 471 U.S. 202

12

Baker v. General Motors Corp., 478 U.S. 621

cc T0000 ——T„— 12

Belknap, Inc. v. Hale, 463 U.S. 491 (1983) -..... 9, 12

Bell v. Hood, 327 U.S. 678 (194972 10

Bivens v. Six Unknown Named Agents of the

Fed. Bureau of Narcotics, 403 U.S. 30% (1971) 9

Brown v. Hotel and Restaurant Employees and

Bartenders Int’l Union Local 54, 462 U.S. 191

2 — erecticerenernennttentennemensis enngnibtinn 20, 21

Caterpillar Inc. v. Williams, —— US. ——, 107

xx 12

Chapman v. Houston Welfare Rights Org., 441

e . 20

Charles Dowd Box Co. v. Courtney, 368 U.S. 502

( — 12

Consolidated Freightways Corp. v. Kassel, 730

F.2d 1139 (8th Cir.), cert. denied, 469 U.S. 834

RR . 19

Fort Halifax Packing Co. v. Coyne, —— U.S. ——,

107 8. Ct. 2211 (19877. 12

Golden State Transit Corp. v. City of Los Angeles,

re passim

Golden State Transit Corp. v. City of Los Angeles,

754 F.2d 830 (9th Cir. 1985), rev’d, 475 U.S.

EE Te er nek Le a ee ee passim

Golden State Transit Corp. v. City of Los Angeles,

686 F.2d 758 (9th Cir. 1982), cert. denied, 459

Gs Eee ee passim

Golden State Transit Corp. v. City of Los Angeles,

520 F. Supp. 191 (C.D. Cal. 19817) passim

Gould, Inc. v. Wisconsin Dep’t of Industry, 750

F.2d 608 (7th Cir. 1984), aff’d on other grounds,

A NL RAR SERS oe so 19

Int'l Longshoremen’s Ass’n v. Davis, 476 U.S. 380

rr ( nneeniiaibbiniidasadaiait 12

*

TABLE OF AUTHORITIES—Continued

Page

Kennecott Corp. v. Smith, 637 F.2d 181 (3rd Cir.

. EE sce eB kage Se RA et ee 19

Lingle v. Norge Div. of Magic Chef, Inc., ——

U.S. ——, 108 S. Ct. 1877 (1989)))) 12

Local 174, Int'l Bhd. of Teamsters v. Lucas Flour

lg Gee ie te i 9

Lodge 76, Int'l Ass’n of Machinists and Aerospace

Workers v. Wisconsin Employment Relations

Comm’n, 427 U.S. 132 (1976) passim

Lynch v. Household Finance Corp., 405 U.S. 538

PPP 11

Maine v. Thiboutot, 448 U.S. 1 (198) 19

Marbury v. Madison, 5 U.S. (1 Cranch) 137

„„ rr 11

Martin-Marietta Corp. v. Bendix Corp., 690 F.2d

e I OE ET 19

Metropolitan Life Ins. Co. v. Massachusetts, 471

pe ne rene Er Cee 9, 12

Metropolitan Life Ins. Co. v. Taylor, 481 U.S. 58

17777 —•—— ———— Oe 12

Michigan Canners and Freezers Ass’n, Ine. v.

Agricultural Marketing and Bargaining Bd.,

J 20

NLRB v. Insurance Agents’ Int'l Union, 361 U.S.

i e ae aes 9

Owen v. City of Independence, 445 U.S. 622

J — RON Oe aa 10, 11

Pennhurst State School and Hosp. v. Halderman,

Ge ee ea 13, 14

H. K. Porter Co. v. NLRB, 397 U.S. 99 (1970)...... 9,17

Private Truck Council of America, Inc. v. Quinn,

Se ee 19

Rosado v. Wyman, 397 U.S. 397 Fa 14

Samuels v. District of Columbia, 770 F.2d 184

. [ 14

Smith v. Robinson, 468 US. 992 e 11

vi

TABLE OF AUTHORITIES—Continued

Page

White Mountain Apache Tribe v. Williams, 8.0

F.2d 844 (9th Cir.), cert. denied, 479 U.S. 1060

e A 19

Wisconsin Dep't of Industry v. Gould, Inc., 475

rr 12

Wright v. City of Roanoke Redev. and Housing

Auth., 479 U.S. 418 (1987 ——.,.f 14, 18

OTHER AUTHORITIES:

The Civil Rights Act of 1871, 42 U.S.C. § 1983....passim

National Labor Relations Act, Section 8(d), as

amended, 29 U.S.C. § 158(d) -...........................-...- passim

Supremacy Clause, United States Constitution,

pg fy IA eh ee EY passim

Taft-Hartley Act, 29 U.S.C. § 141 (b) (1982) 15

22 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No.

GOLDEN STATE TRANSIT Cokp.,

Petitioner,

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Petitioner Golden State Transit Corporation respect-

fully prays that a writ issue to review the judgment and

opinion of the United States Court of Appeals for the

Ninth Circuit, dated September 15, 1988.

OPINIONS BELOW

The opinion of the United States Court of Appeals for

the Ninth Circuit, dated September 15, 1988, is presently

unreported and is reprinted in the Appendix to this Pe-

tition (“Pet. App.”), at 18a. Other relevant opinions be-

low are reported, and are cited in this Court’s prior

ruling in this case, 475 U.S. 608 (1986), reprinted in

Pet. App., at la.

2

JURISDICTIONAL STATEMENT

The judgment of the Court of Appeals was entered on

September 15, 1988. The jurisdiction of this Court rests

upon 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The constitutional and statutory provisions involved,

set forth in Pet. App., at 32a, are:

Supremacy Clause, United States Constitution, Article

VI, clause 2.

National Labor Relations Act (“NLRA”), Section

8(d), as amended, 29 U.S.C. § 158(d).

The Civil Rights Act of 1871, 42 U.S.C. § 1983.

STATEMENT OF THE CASE

This case arose because the City of Los Angeles ( the

City”) decided to condition renewal of Golden State

Transit Corp.’s (“Golden State”) franchise to operate

Yellow Cab of Los Angeles, then the City’s largest taxi-

cab company, upon immediate resolution of a peaceful

labor dispute between Golden State and the Teamsters

local representing Golden State’s drivers. The Teamsters

had struck at midnight on February 11, 1981, the day

that the City Council was to consider renewal of the

franchises of all thirteen cab companies operating in Los

Angeles. Although Golden State had been found fully

qualified for long-term renewal of its franchise by all

subordinate city agencies, at the Teamsters’ behest the

1 This case concerns the remedial aspects of the controversy con-

sidered by the Court in Golden State Transit Corp. v. City of Los

Angeles, 475 U.S. 608 (1986). The salient facts and procedural his-

tory of this case are set forth in detail in the Supreme Court’s prior

opinion, 475 U.S., at 609-13, Pet. App., at 2a-6a. The following sum-

mary highlights those issucs most relevant to the remedial question

raised in this petition, focusing on post-Supreme Court develop-

ments in this litigation.

City Council voted to withhold renewal of Golden State’s

franchise pending settlement of the labor dispute.*

Golden State immediately initiated this lawsuit against

the City, seeking declaratory and injunctive relief and

damages. On April 13, 1981, the U.S. District Court for

the Central District of California found that the City’s

conduct denied Golden State rights granted by the federal

labor laws and enjoined the City’s interference in the

labor dispute. 520 F. Supp. 191 (C.D. Cal. 1981) (see

475 U.S., at 611-12, Pet. App., at 4a-5a). This pre-

liminary injunction was overturned on appeal, 686 F. 2d

758 (9th Cir. 1982), cert. denied, 459 U.S. 1105 (1983).

The Ninth Circuit held that while the City conditioned

renewal of Golden State’s franchise upon immediate reso-

lution of the labor dispute, 686 F.2d, at 759, the use of

streets and highways was a matter of “local concern”

and therefore municipal regulation of labor disputes in-

volving streets and highways did not conflict with federal

law. Id. at 760.

The case was remanded to the district court, which

denied Golden State’s renewed request for injunctive re-

lief. The next day following that denial, still in the midst

of this litigation, the City served a cease and desist order

upon Golden State, forcing its cabs off the roads and

destroying its business.“

2 The Mayor and various members of the City Council previously

had attempted unsuccessfully to mediate the differences between

the Teamsters and Golden State. As stated in this Court’s opinion,

475 U.S., at 610-11, Pet. App., at 3a-4a, the City Council initially

voted to hold Golden State’s franchise in abeyance for approximately

one month, allowing the parties time to settle the dispute. When no

settlement was achieved, on March 23, 1981, again at the behest

of the Teamsters, the City Council denied (“den State renewal of

its franchise.

At the time of this cease and desist order, Golden State was

involved in an involuntary Chapter 11 reorganization in‘tiated by

one of its creditors. The Chapter 11 proceeding was converted to a

Chapter 7 liquidation thereafter.

4

The case returned to the Ninth Circuit after a final

ruling against Golden State in the district court. In its

second ruling, the Ninth Circuit disavowed its prior opin-

ion, holding that reliance upon the “local concern” ex-

emption had been misplaced, and that municipal regula-

tion of labor matters involving “streets and highways”

could be inconsistent with federal labor law. 754 F.2d

830, 832-33 (9th Cir. 1985). The Ninth Circuit con-

cluded, however, that “only actions seeking to directly

alter the substantive outcome of a labor dispute should

be preempted,” id., at 833, and that the City’s conduct

was permissible because it had not attempted to dictate

the terms of the parties’ collective bargaining agree-

ment. Id.

The Court’s Previous Ruling

This Court granted certiorari and reversed. The Court

found ample evidence in the record to establish that the

City in fact conditioned renewal of Golden State’s fran-

chise upon resolution of the labor dispute, 475 U.S., at

615-16, n.6, Pet. App., at 9a, n.6, and held that the City

Council’s attempt to force a settlement of the labor dis-

pute denied Golden State the right to rely upon its eco-

nomic strength in a labor dispute and to bargain free

from government coercion.

The parties’ resort to economic pressure was a le-

gitimate part of their collective-bargaining process.

Machinists (v. Wisconsin Employment Relations

Comm'n], 427 U.S. [132], at 144. But the bargain-

ing process was thwarted when the city in effect im-

posed a positive durational limit on the exercise of

economic self-help. . . .

475 U.S., at 615, Pet. App., at 8a-9a.

“*lrlesort to economic weapons should more peace-

ful measures not avail’ is the right of the employer

as well as the employee,” and “the State may not

prohibit the use of such weapons . . any more than

in the case of employees.” Machinists v. Wisconsin

Employment Relations Comm’n, 427 U.S., at 147,

quoting American Ship Building Co. v. NLRB, 380

U.S., at 317. “[F]ederal law intended to leave the

employer and the union free to use their economic

weapons against one another.” Belknap, Inc. v.

Hale, 463 U.S., at 500. We hold, therefore, that the

city was pre-empted from conditioning Golden

State’s franchise renewal on the settlement of the

labor dispute.

475 U.S., at 618, Pet. App., 12a. The Court reaffirmed

the primacy of free collective bargaining under the fed-

eral labor laws, 475 U.S., at 619, Pet. App., at 12a-13a,

and held that municipal coercion such as applied here di-

rectly conflicted with the system of private industrial dis-

pute settlement created by Congress. Justice Rehnquist

dissented, reasoning that the express language of the

NLRA did not support this application of the Court’s

labor law preemption doctrine. 475 U.S., at 623, Pet.

App., at 16a-17a.

Post-Remand Proceedings

On remand the district court granted Golden State

summary judgment on liability, finding once again that

the City had conditioned renewal of Golden State’s fran-

chise upon immediate resolution of the labor dispute.‘

During the course of argument on summary judgment,

however, the district court sua sponte ordered further

argument and briefing on the court’s power to award

compensatory damages to Golden State. Golden State

contended that compensatory damages were appropriate

both under 42 U.S.C. § 1983 and pursuant to the inherent

remedial powers of the federal courts. The City dis-

agreed, but admitted that injunctive relief against it was

appropriately entered.

* Golden State had not filed a motion for summary judgment prior

to Supreme Court review. In the summary judgment proceedings in

the district court, the City did not present any evidence, contenting

itself with arguing court that had considered this case—

including this Court—had misconstrued the record and the City’s

motives. Summary judgment was entered without written opinion.

6

The district court held that it had no power to award

damages in this case, rejecting the “nebulous notion”

that it possessed any inherent power to award damages.

The district judge further concluded that Section 1983

relief was inappropriate, both because “the NLRA does

not create rights and obligations with respect to third

parties who are not parties to a collective agreement”

and because the National Labor Relations Board’s pri-

mary jurisdiction over wrongs committed by employers

and unions precluded judicial relief, under Section 1983,

against state or local governments. The district court

concluded that injunctive relief was appropriate, how-

ever, accompanied by ancillary monetary relief limited

to the fair market value of Golden State’s tangible assets

on March 23, 1981 (the date the City Council decided

not to renew Golden State’s franchise), less any sums

received by Golden State during the ensuing bankruptcy.

The court, at the joint request of the parties, agreed to

certify for immediate appeal the issue of its power to

award compensatory damages.“

The Decision Below

The Ninth Circuit affirmed, concluding that the fed-

eral courts have no power to award damages in this case.

The panel below held that Section 1983 was limited to

cases involving a “direct violation” of a federal statute,

and that the express language of the NLRA “impose([s]

obligations on ‘an employer’ and on ‘a labor organization.’

Actions of a third-party, not employer or employee labor

organization, do not give rise” to a “direct violation” of

the NLRA. Pet. App., at 24a. Despite the clear ab-

5 By refusing to allow recovery for Golden State’s intangible

assets (goodwill and the going concern value of the largest and

oldest taxi company in Los Angeles), the proposed monetary remedy

would not be of any substantial value to Golden State. Neither

would an injunction be of value to an employer long ago forced to

liquidate its business. As the City has recognized by not opposing

certification or a stay of mandate below, the sole issue of any sub-

stance remaining in this case is Golden State’s right to compensa-

tory damages.

7

sence of any alternative federal statutory remedy against

the City, the panel further held that Congress deliber-

ately precluded judicial enforcement of Golden State‘s

rights under Section 1983 by empowering the National

Labor Relations Board (“NLRB”) to rectify unfair

labor practices committed by employers and unions. Pet.

App., at 25a. The panel found no direct or actual con-

flict between the City’s action and the NLRA because

“the NLRA does not explicitly prohibit the City from

acting in the area of labor relations,” Pet. App., at 27a,

and thus refused to hold that Section 1983 relief was ap-

propriate under the Supremacy Clause. Finally, the

panel held that in this case no “inherent authority exists

in the federal courts to award compensatory damages

where section 1983 damages are unavailable,” Pet. App.,

at 28a, reasoning that any such inherent authority was

limited to cases involving “individual constitutional

right[s].” Id.

Judge Alarcon, expressing serious reservations, con-

curred in the judgment “under compulsion of our deci-

sion in White Mountain Apache Tribe v. Williams

(White Mountain), 810 F.2d 844 (9th Cir.), cert. de-

nied, [479 U.S. 1060] 107 S. Ct. 940 (1987).” Pet. App.,

at 29a. Admitting that “the law of the circuit compels

us to hold that section 1983 damages are not available

because the City of Los Angeles did not directly violate

the National Labor Relations Act,” Judge Alarcon con-

cluded that “I believe that White Mountain is inconsis-

tent with the reasoning of the Supreme Court in Wright

v. Roanoke Redev. and Housing 479 U.S. 418] 107 8.

Ct. 766 (1987),” Pet. App., at 29a:

The Court in Wright did not hold that a state

actor would be liable only if a federal statute ex-

pressly forbids the state actor from such interfer-

ence. Instead, the Court focused on protecting the

right secured by federal law, and not on whether all

persons who might deprive another of the benefits

of such a statute are identified by Congress. The

language used by the Court in Wright carries out

8

the plain meaning of the language of section 1983.

Our opinion in White Mountain frustrates congres-

sional intent.

In the case sub judice, the City of Los Angeles de-

prived Golden State of the statutory right to engage

in the collective ba process free from third-

party interference. 29 U.S.C. 5 158 (d); Golden

State, 475 U.S. at 618. Thus, under Wright, Golden

State would appear to have cause of action for dam-

ages under section 1983.

Pet. App., at 30a.

REASONS FOR GRANTING THE WRIT

I. REFUSAL TO GRANT A DAMAGE REMEDY EF-

FECTIVELY NEGATES THIS COURT’S DECISION

IN GOLDEN STATE TRANSIT CORP. v. CITY OF

LOS ANGELES.

In Golden State, this Court held “that the City was

pre-empted from conditioning Golden State’s franchise

renewal upon settlement of the labor dispute,” 475 U.S.,

at 618, Pet. App., at 12a, because Congress deliberately

intended to protect management and labor from govern-

mental interference in the collective bargaining process.“

* This Court stated :

There is no question that the Teamsters and Golden State

employed permissible economic tactics... .

The parties’ resort to economic pressure was a legitimate

part of their collective-bargaining process. [Citation omitted.

But the bargaining process was thwarted when the city in

effect imposed a positive durational limit on the exercise of

self-help. . . .

That such a condition—by a city or by the National Labor

Relations Board—contravenes congressional intent is demon-

strated by the language of the NLRA and its legislative

history

„resort to economic weapons should more peaceful measures

not avail’ is the right of the employer as well as the employee,”

and “the State may not prohibit the use of such weapons

9

This Court reiterated that [f] ree collective bargaining

of

now-defunct “winner

We submit that this Court, by specificaiiy holding that

Congress forbade this very municipal interference with

lective bargaining, necessarily intended that the lower

courts would use normally available emedies to grant

Golden State meaningful relief.* It simply is illogical to

any more than in the case of employees.” Machinists v. Wis-

consin Employment Relations Comm'n, 427 U.S., at 147, quoting

American Ship Building Co. v. NLRB, 380 U.S., at 317. “[F Jed-

eral law intended to leave the employer and the union free to

use their economic weapons against one another.” Belknap, Inc.

v. Hale, 463 U.S. at 500.

475 U.S., at 615, 616, 618, Pot. App., at 8a, 9a, 12a (emphasis added).

7475 U.S., at 619, Pet. App., at 12a (quoting New York Tel. Co.

v. New York Labor Dep't, 440 U.S. 519, 551 (1979) (Powell, J.,

dissenting) ). See also Metropolitan Life Ins. Co. v. Massachusetts,

471 U.S. 724, 753-55 (1985); Belknap, Inc. v. Hale, 463 U.S. 491,

524 (1883) „Frennan, J., dissenting); H. RK. Porter Co. v. NLRB,

397 U.S. 99, 102-04 (1970); Local 174, Int'l Bhd. of Teamsters v.

Lucas Flour Co., 369 U.S. 95, 104 (1962); NLRB ». Insurance

Agents’ Int'l Union, 361 U.S. 477, 484-86 (1960).

* Compensatory damages, of course, are a “remedial mechanism

normally available in the federal courts.” Bivens v. Siz Unknown

Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388,

397 (1971). “[W)here federally protected rights have been invaded,

it has been the rule from the beginning that courts will be alert

3

10

conclude, consistent with this Court’s decision, that the

federal courts may not award a traditional damage rem-

-edy to an employer whose business was singled out and

destroyed solely because its owners bargained in pre-

cisely the fashion envisioned by Congress. This Court

concluded that by conditioning franchise renewal upon

resolution of the labor dispute, the City unlawfully de-

stroyed Golden State’s business; according to ihe Ninth

Circuit, Golden State, and not the City, must bear the

loss occasioned by the municipal conduct already con-

demned by this Court.

Compensatory damages are a necessary and appro-

priate remedy for Golden State’s injuries. Granting an

injunction—even accompanied by the illusory ancillary

relief envisioned by the district court—to a business un-

lawfully destroyed years ago does not even begin to re-

store the status quo, and ignores the years of lost profits

and competitive harm occasioned by the City’s illegal

conduct.“ This case does not fall within the limited class

of cases in which damages might be considered inappro-

priate. The City has no claim to eleventh amendment

immunity, Owen v. City of Independence, 445 U.S.

622, 639 (1980), and all of the difficult issues in this

case—including whether a remediable wrong has been

committed—have been resolved by this Court’s opin-

ion and the City’s admission that injunctive relief is ap-

to adjust their remedies so as to grant the necessary relief. And it

is also well settled that where legal rights have been invaded, and a

federal statute provides for a general right to sue for such invasion,

federal courts may use any available remedy to make good the

wrong done.” Bell v. Hood, 327 U.S. 678, 684 (1946) (footnotes

omitted)

* As stated above, it was the City’s own conduct that created the

need for a damage remedy. In 1983, once the preliminary injunction

was overturned on appeal and the district court refused to renew

the prohibition, the City immediately issued a cease and desist order

to Golden State, forcing its cabs off the street and the company into

liquidation. The City had no pressing reason for this conduct; there

is not even a hint that the City’s action served any legitimate public

interest.

11

propriate. We do not seek damages on be lalf of an ill-

defined or unwieldy class, nor do we ask the courts to

establish a value for inchoate constitutional rights. The

business issues involved in calculating Golden State’s

damages—assigning a value to the business, and esti-

mating lost profits during the years that Golden State

improperly was prevented from operating—are addressed

by the federal courts on a daily basis, in cases rang-

ing from antitrust to takings. Thus, the basic principle,

tracing back to Marbury v. Madison, 5 U.S. (1 Cranch)

137, 163 (1803), “that every right, when withheld, must

have a remedy and every injury its proper redress,” is

fully applicable here.“

The decision below not only denies Golden State its

due, but poses a substantial and direct threat to the

bargaining process. Confiding exclusive protection of the

collective bargaining process, the key concern of the

NLRA, to the equitable discretion of the lower courts

would be a serious error. The lower federal courts re-

peatedly have shown a less than complete understanding

of this difficult area; in this very case, where the munici-

pal interference with bargaining was of the crudest

10 The Ninth Circuit’s conclusion that the federal courts somehow

have been deprived of their traditional power to award damages in

this case has absolutely no historical or logical basis. Damage reme-

dies cannot be limited to the scope of Section 1983, as intimated by

the court below. Long prior to the passage of Section 1983, a

supplementary remedy designed to implement the provisions of the

fourteenth amendment, “[l]ocal governmental units were regu-

larly held to answer in damages for a wide range of statutory and

constitutional violations . .. Damage actions against municipalities

for federal statutory violations were also entertained.” Owen v.

City of Independence, 445 U.S. 622, 639 and n.19 (1980). See also

Smith v. Robinson, 463 U.S. 992, 1012 n.15 (1984). Congress in no

way limited this admitted authority by passing a new law—Section

1983—extending federal court jurisdiction to additional wrongs.

Moreover, this Court has held definitively that federal remedial

power is not limited to cases involving “personal” or individual“

rights. See, e.g., Lynch v. Household Finance Corp., 405 U.S. 538,

552 (1972) ([The dichotomy between personal liberties and prop-

erty rights is a false one.“)

12

kind, the Ninth Circuit twice mistakenly held (using

completely different rationales) that the City’s conduct

was not in conflict with federal labor law.! Labor pre-

emption law is an area of substantial complexity, in

which doctrinal developments almost guarantee that the

lower courts will not be able to protect key federal rights

through injunctive relief alone. Since 1983, this Court

has issued ten labor preemption decisions, and these

decisions have yet to be assimilated into a coherent body

of law by the lower courts. Losses resulting from these

doctrinal developments, and lower court misunderstand-

ing of this complex area of the law, cannot be allowed to

fall upon innocent parties like Golden State rather than

upon those who have violated federal law.“

If the decision below is allowed to stand, however,

neither management nor labor will be able to combat im-

proper municipal pressures. In the future, if injunctive

11 See supra, at 3-4.

12 In addition to Golden State, first (Garmon) and second (Ma-

chinists) branch preemption cases have included (in chronological

order) Belknap, Inc. v. Hale, 463 U.S. 491 (1983); Metropclitan

Life Ins. Co. v. Massachusetts, 471 U.S. 724 (1985); Wisconsin

Dep't of Industry v. Gould, Inc., 475 U.S. 282 (1986); Int'l Long-

shoremen’s Ass'n v. Davis, 476 U.S. 380 (1986); Baker v. General

Motors Corp., 478 U.S. 621 (1986); and Fort Halifax Packing Co.

v. Coyne, —— U.S. ——, 107 S. Ct. 2211 (1987). Section 301

preemption cases have included Allis-Chalmers Corp. v. Lueck, 471

U.S. 202 (1985); Caterpillar Inc. v. Williams, —— U.S. ——, 107

S. Ct. 2425 (1987); and Lingle v. Norge Div. of Magic Chef, Inc.,

—— U.S. ——, 108 S. Ct. 1877 (1988).

13 This is an even more pressing concern because labor preemp-

tion issues are likely to arise in state courts, which have even less

familiarity with federal labor laws, and the policies underlying

them, than their federal counterparts. Metropolitan Life Ins.

Co. v. Taylor, 481 U.S. 58 (1987) (properly pleaded state claim not

removable to federal court on basis of federal preemption defense) ;

Charles Dowd Box Co. v. Courtney, 368 U.S. 502 (1962) (state and

federal courts have concurrent jurisdiction over Section 301 claims).

13

relief is improperly denied, or if appropriate relief is

granted and then overturned (as occurred here), man-

agement or labor will have to yield because damages

arising during the pendency of an appeal will not be re-

coverable. Golden State refused to accede to the City’s

unlawful edict, believing that the rights granted by Con-

gress would be vindicated fully by the federal courts.

Unless the decision below is reversed, no employer or

labor union will make that assumption again, and no

further appeals will be taken. The result will be not a

dilution, but a negation, of the congressional regime of

free collective bargaining.

II. THE RULING BELOW IS IN DIRECT CONFLICT

WITH THIS COURT’S INTERPRETATION OF 42

US.C. 8 1983 AND TACITLY REVERSES THIS

COURT'S PRIOR DECISION.

Judge Alarcon’s concurrence, quoted at greater length

above, is absolutely correct in concluding that the deci-

sion below “is inconsistent with the reasoning of the

Supreme Court in Wright v. Roanoke Redev. and Hous-

ing, [479 U.S. 418] 107 S. Ct. 766 (1987)” and that

“under Wright, Golden State would appear to have a

cause of action for damages under section 1983.” Pet.

App., at 29a, 30a. The Ninth Circuit holding that Sec-

tion 1983 relief is unavailable here is based upon two

interrelated and equally incorrect propositions: first,

that the NLRA grants Golden State no enforceable rights

against the City, and second, that Section 1983 is ap-

plicable only where a “direct violation” of a federal

statute occurs. Neither proposition has any foundation

in this Court’s jurisprudence; together, they have been

used by the court below to reverse tacitly this Court’s

holding in Golden State.

In concluding that the National Labor Relations Act

does not grant Golden State enforceable rights against

the City, the Ninth Circuit attempted to fit this case into

the exception from Section 1983 relief created in Penn-

hurst State School and Hosp. v. Halderman, 451 U.S.

14

1 (1981). The Pennhurst exception, however, is appro-

priate only where Congress merely has encouraged rather

than mandated a result:

In Pennhurst, a § 1983 action did not lie because the

statutory provisions were thought to be only state-

ments of “findings” indicating no more than a con-

gressional preference—at most a “nudge in the pre-

ferred direction In], 451 U.S., at 19, and not in-

tended to rise to the level of an enforceable right.

Wright v. City of Roanoke Redev. and Housing Auth.,

479 U.S., at 423; see also id., at 433 (O'Connor, J., dis-

senting).“

This Court's previous ruling in Golden State estab-

lishes that the Pennhurst exception does not apply here.

Unlike Pennhurst cases, see supra note 14, this case does

not involve a cooperative federalism or grant scheme in

which federal monies are tied to a desirable but not

mandatory norm. This Court’s ruling in Golden State

establishes that in passing and amending the National

Labor Relations Act, Congress deliberately intended to

prohibit municipal interference in the bargaining proc-

ess. There can be no question that this absolute prohibi-

tion is statutory in origin:

That such a condition—by a city or by the Na-

tional Labor Relations Board—contravenes congres-

14 See also Pennhurst State School and Hosp. v. Halderman,

451 U.S. 1, 20 (1981) (legislative history of act in question led to

conclusion “that Congress intended to encourage, rather than man-

date, the provision of better services to the developmentally dis-

abled.”) ; Rosado v. Wyman, 397 U.S. 397, 413 (1970) (“Congress

sometimes legislates by innuendo, making declarations of policy and

indicating a preference while requiring measures that though fall-

ing short of legislating its goals, serve as a nudge in the preferred

directions.”); Samuels v. District of Columbia, 770 F.2d 184,

195 (D.C. Cir. 1985) (“section 1983 will not lie to enforce vague

policy sections of federal statutes intended only to advise, rather

than to mandate“); see also id., at 197, and cases cited therein.

15

sional intent is demonstrated by the language of the

NLRA and its legislative history. The NLRA re-

quires an employer and a union to bargain in good

faith, but it does not require them to reach agree-

ment. § 8(d), as amended, 29 U.S.C. § 158(d) (duty

to bargain in good faith “does not compel either

party to agree to a proposal or require the making

of a concession” )

A local government as well as the National La-

bor Relations Board, lacks the authority to “ ‘intro-

duce some standard of properly “balanced” bargain-

ing power’ . . . or to define ‘what economic sanctions

might be permitted negotiating parties in an “ideal”

or “balanced” state of collective bargaining.’ ”

475 U.S., at 616, 619, Pet. App., at 9a, 12a-13a, (em-

phasis added; citations omitted). Neither can there be

any doubt that Golden State, as an employer, was one of

the parties for whose protection this preclusion was

enacted; Golden State certainly does not appear here

as a member of the general public, incidentally benefited

by a statute designed to enhance the public weal.

in contrast to this principled Pennhurst inquiry, which

reveals that Golden State has a cause of action under

Section 1983, the Ninth Circuit created an entirely new

limitation upon Section 1983 by holding that such relief

is unavailable unless state or local conduct “directly vio-

lates” a federal statute. This Court never has recognized

any such limitation; neither has any other circuit court.

As stated by Judge Alarcon, this new exception is in

direct conflict with this Court’s Section 1983 rulings, as

exemplified by Wright, supra, which properly concentrate

on “protecting the right secured by federal law, and not

on whether all persons who might deprive another of the

15 Section 1(b) of the Taft-Hartley Act, 29 U.S.C. § 141(b) (1982)

states (in pertinent part) :

It is the purpose and policy of this chapter . . to prescribe the

legitimate rights of both employees and employers.

16

benefits of such statute are identified by Congress.”

Pet. App., at 30a.

The dangers of such a test are amply revealed in the

decision below. The Ninth Circuit used its unprecedented

“direct violation” test to set aside this Court’s prior rul-

ing by holding that the literal language of the NLRA,

read in isolation, was not “directly violated” in this case.

[T)his statute imposes mutual obligation[s]” upon

“the employer and the representative of its employ-

ees” to “bargain collectively” and “in good faith.”

Actions of a third-party, not employer or employee

labor organization, do not give rise to a claim for

damages against the third-party under these pro-

visions.

Pet. App., at 24a.“ And subsequently, the Ninth Circuit

stated “we cannot say that the City’s actions directly

conflict with an ‘explicit provision’ of the NLRA—the

NLRA does not explicitly prohibit the City from acting

in the area of labor relations. Pet. App., at 27a

(emphasis added).

16 The Ninth Circuit’s conclusion here is disingenuous. The quote

above discusses only the unfair labor practice proscriptions of the

NLRA, Sections 8(a) and 8(b) of the statute. Yet in the immedi-

ately preceding paragraph, the Ninth Circuit states:

Here, the federal statute in question is the NLRA. The provi-

sion at issue is section 8(d), as amended, 29 U.S.C. § 158(d).

Pet. App., at 24a (emphasis added). The court below apparently

shifted emphasis away from section 8(d) because this provision

was the basis for this Court’s ruling, as acknowledged by the Ninth

Circuit:

The Court concluded that Congress had preempted intrusion

by “a Iccal government” into the collective bargaining process by

enacting the NLRA, section 8(d), as amended, 29 U.S.C.

§ 158(d).

Pet. App., at 19a (emphasis added).

17 The Ninth Circuit’s emphasis on the express language of the

statute is markedly similar to Justice Rehnquist’s dissent in this

case, which also argued that the statute's literal language did not

17

The Ninth Circuit’s fixation upon the express language

of the statute trivializes the power of the federal courts

tes,

federal rights are fully remediable, under Section 1983 or otherwise,

absent a clear congressional indication to the contrary.

1 See, e.g., H. XK. Porter Co. v. NLRB, 397 U.S. 99, 103-06 (1970)

(reviewing legislative history of Labor Management Relations Act

and concluding that Section 8(d) was intended to preclude the

NLRB from compelling concessions in bargaining) Lodge 76, Int'l

Ass'n of Machinists and Aerospace Workers v. Wisconsin Employ-

ment Relations Comm'n, 427 U.S. 132, 149, 153 (1976) (“Our deci-

sions hold that Congress meant that these activities, whether of

employer or employees, were not to be regulable by States any more

than by the NLRB... . [S)tate attempts to influence the substantive

terms of collective-bargaining agreements are as inconsistent with

the federal regulatory scheme as are such attempts by the NLRB.”).

18

Congress’ decision to leave open the use of economic

weapons.“

The Ninth Circuit was not free, in light of this Court’s

ruling, to interpret Section 80d) as a narrow definition

of the parties’ rights inter se. This Court has established

that the statute in general, and Section 8(d) in partic-

ular, prohibits federal, state and local government inter-

ference in the bargaining process, and thus grants man-

agement and labor enforceable rights against govern-

ments. Injuries caused by breach of this statutory man-

date must be remediable in damages.

III. THE WRIT SHOULD ISSUE TO RESOLVE

WHETHER SECTION 1983 RELIEF IS APPRO-

PRIATE IN PREEMPTION CASES.

We believe that this petition should be granted, for

the reasons stated above, to preserve Golden State’s stat-

utory rights, to reaffirm this Court’s ruling and to pre-

vent creation of a new and unauthorized exception to

% Section 1983 relief is not precluded here, because no “express

provision or other specific evidence from the statute itself” demon-

strates that Congress intended to foreclose Section 1983 relief.

Wright, supra, 479 U.S., at 423-24; and see id. (“ ‘We do not lightly

conclude that Congress intended to preclude reliance on § 1983 as a

remedy’ for the deprivation of a federally secured right.”) (quoting

Smith v. Robinson, 468 U.S. 992, 1012 (1984)). Congress has

empowered the National Labor Relations Board to police the con-

duct of employers and unions; there is no statutory remedy avail-

able against municipalities. In the absence of some alternative

private remedy or preclusive statutory language, it is impossible

to conclude that Congress ‘deliberately intended to foreclose judicial

relief under Section 1983. See Wright, supra, 479 U.S., at 424-28

(preclusion appropriate only where Congress creates alternatives pri-

vate remedy). It would be ironic indeed if the NLRB’s jurisdiction,

created to encourage “the practice and procedure of collective bar-

gaining,” were allowed to prevent effective protection of the collec-

tive bargaining process that forms “the cornerstone of the struc-

ture of labor-management relations carefully designed by Congress

when it enacted the NLRA.” Golden State, 475 U.S., at 619, Pet.

App. at 12a (quoting New York State Tel. Co. v. New York Labor

Dep't, 440 U.S. 519, 551 (1979) (Powell, J., dissenting) ).

— —

—

The Ninth Cireuit tacitly admitted that Section 1983

relief was available in a preemption case if the local gov-

ernment conduct was in direct and actual conflict with

Supremacy Clause, every Section 1983 case involving a

federal statutory claim necessarily involves some form

of preemption under the Supermacy Clause. The prop-

Compare Martin-Marietta Corp. v. Bendix Corp., 690 F.2d 558

(6th Cir. 1982); Kennecott Corp. v. Smith, 637 F.2d 181 (3rd Cir

1980) (Supremacy Clause and Commerce Clause claims arise under

Section 1983) with White Mountain Apache Tribe v. Williams, 810

F.2d 844 (9th Cir.), cert. denied, 479 U.S. 1060 (1987); Gould, Ince

v. Wisconsin Dep't of Industry, 750 F.2d 608 (7th Cir. 1984), aff'd

20

osition that Section 1983 relief is never available in pre-

emption cases thus cannot stand.“

Where the court below erred was not in its general

analysis, but in its conclusion that this case did not in-

volve an actual conflict between federal law and local

action. In so ruling, the Ninth Circuit repeated the crit-

ical mistake noted above; it relied upon the literal words

of the National Labor Relations Act, rather than this

Court’s binding interpretation of federal law.

[Wie cannot say that the City’s actions directly con-

flict with an “explicit provision” of the NLRA—the

NLRA does not explicitly prohibit the City from act-

ing in the area of labor relations

Pet. App., at 27a (emphasis added). Once again, how-

ever, the express language of the statute cannot deter-

mine whether a federal-state conflict exists, because the

federal courts—and especially this Court—have the power

and the duty to interpret the language used by on-

gress, in light of legislative history, to serve the legisla-

21 This Court has delineated with great care the different types

of preemption, see Michigan Canners and Freezers Ass'n v. Agri-

cultural Marketing and Bargaining Bd., 467 U.S. 461, 469 (1984) ;

Brown v. Hotel and Restaurant Employees and Bartenders Int'l

Union Local 54, 468 U.S. 491 (1984), and has held that in cases

involving actual conflict between federal law and state or local

action, preemption follows “as a matter of substantive right.”

Brown, supra, 468 U.S., at 503.

We do not contend that Section 1983 relief is available in every

preemption case; there are many preemption cases in which a state

or local government acts in an area of pervasive federal regulation

or interest, but does not contravene any specific federal statutory

the federal government has not decreed how particu-

to be treated (in contrast to the situation here,

laws specify that employer and union bargaining

be free from all government sanction), we do not

propose that this Court recognize a generalized “right to be free

from excessive state or local regulation in an area of federal inter-

est,” remediable under Section 1983. Cf. Chapman v. Houston

Welfare Rights Org., 441 U.S. 600 (1979).

gg ii — i kD •-w Äůͥm g i ee el eee ' rw — — — —

created a regime of private industrial dispute settlement,

in which management and labor have the right to bar-

gain free from government sanction.

54, 468 U.S. 491 (1984), this Court explicitly held that

“field preemption” was not involved in labor cases, 468

U.S., at 501, and stated:

The Court has, however, tradi-

Nee

on the basis of an actual conflict with §7. If em-

ployee conduct is protected under § 7, then state law

right granted it it by Congress (“‘[rjesort to economic

weapons should more peaceful measures not avail’ is

the right of the employer as well as the employee, and

‘the State may not prohibit the use of such weapons

any more than in the case of employees,. 475 U.S., at

618, Pet. App., at 12a (emphasis added)). Indeed, the

entire thrust of the Machinists preemption doctrine is to

ly i

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1115 111

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APPENDIX

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No. 84-1644

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Certiorari to the United States Court of Appeals

for the Ninth Circuit

| 4, 1985—Decided April 1, 1986

*

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John F. Haggerty argued the cause and filed a brief

for respondent. *

JUSTICE BLACKMUN delivered the opinion of the Court.

The city of Los Angeles, Cal., refused to renew Golden

State Transit Corporation’s taxicab franchise after the

company’s drivers went on strike. We are asked to de-

cide whether, under Machinists v. Wisconsin Employment

Relations Comm’n, 427 U.S. 132 (1976), the city’s action

is preempted by the National Labor Relations Act

(NLRA), 29 U. S. C. § 151 et seq.

I

In 1980, Golden State, which operated taxicabs under

the Yellow Cab name, applied to the city for a renewal

of its operating franchise eventually scheduled to lapse

on March 31, 1981. That franchise had first been ac-

quired in 1977. On September 4, 1980, the city’s Board

of Transportation Commissioners recommended the re-

newal of Golden State’s franchise—the largest, with ap-

proximately 400 cabs, of companies operating in Los

Angeles—along with the franchises of 12 other taxi

companies.

Peter G. Nash, Dirie L. Atwater, and Stephen A. Bokat filed a

brief for the Chamber of Commerce of the United States as amicus

curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the Na-

tional League of Cities et al. by Rex F. Lee, Benjamin . Heineman,

Jr., Carter G. Phillips, Benna Ruth Solomon, and Joyce Holmes

Benjamin; and for the National Institute of Municipal Law Officers

by George Agnost, Roy D. Bates, Benjamin L. Brown, J. Lamar

Shelley, John W. Witt, and Roger F. Cutler.

Briefs of amici curiae were filed for the National Labor Relations

Board by Acting Solicitor General Fried, Deputy Solicitor General

Wallace, Bruce N. Kuhlik, Norton J. Come, Linda Sher, and Robert

C. Bell, Jr.; and for the American Federation of Labor and Con-

gress of Industrial Organizations by David Silberman and Laurence

Gold.

3a

In October, while the franchise renewal application

was pending, Golden State’s labor contract with its driv-

ers expired. The company and the drivers, represented

by Local 572 of the International Brotherhood of Team-

sters, signed a short-term contract in order that opera-

tions would continue while negotiation and mediation

proceeded. This interim contract was to expire at mid-

night February 10, 1981, the day before the City Council

was scheduled to consider action on the franchise re-

newals.

On February 2, the Council’s Transportation and

Traffic Committee endorsed franchise renewals recom-

mended by the Board of Transportation Commissioners.

The Committee’s report stated that Golden State and

other companies were “in compliance with all terms and

conditions of their franchise[s].” App. 39.

On February 11, the drivers struck Golden State, halt-

ing its operations. At the Council: meeting that day,

Teamster representatives argued against renewal of

Golden State’s franchise because of the pendency of the

labor dispute. The Council postponed decision on Golden

State’s application until February 17, but, with possibly

one exception, approved all other franchise renewal ap-

plications. At the February 17 meeting, when the union

again opposed the renewal, the Council voted to extend

Golden State’s franchise from March 31 to April 30, but

only if the Council expressly found, on or before March

27, that the extension was in the best interests of the

city.

At its March 23 meeting, the Council held a short

public hearing on whether it should grant the limited ex-

tension. By this time, the labor dispute and the franchise

renewal issue had become clearly intertwined. The

Teamsters opposed any extension of the Yellow Cab

franchise, stating that such action would simply lengthen

the strike and keep the drivers out of work. It pre

4a

ferred to see the franchise terminated, and to have the

drivers seek jobs from Golden State’s successor or from

other franchise holders. As others spoke, the discussion

turned to whether there was even a need for Yellow

Cab, in light of the services performed by the other 12

franchised taxi companies. There were comments re-

garding an excess of cabs; the city’s policy at the time,

however, was not to limit the number of taxi companies

or the number of taxis in each fleet. Id., at 81-82.

The strike was central to the discussion. One Council

member charged Golden State with negotiating unrea-

sonably, id., at 71, while another accused the company

of trying to “brea[k] the back of the union.” Id., at 66.

The sympathies of the Council members who spoke lay

with the union. But rather than defeat the renewal out-

right, the council reached a consensus for rejection of the

extension with a possibility for reopening the issue if

the parties settled their labor dispute before the fran-

chise expired the following week. Four Council members

endorsed this approach, and the Assistant City Attorney

said that he clearly had informed the parties that this

was the city’s position. Id., at 68. The Council President

said: “I find that it will be very difficult to get this ordi-

nance past (sic) to extend this franchise if the labor

dispute is not settled by the end of this week.” Id., at 75.

He added: “I just think that this kind of information

should be put out in the open, so everybody understands

it.” Ibid. The Council, by a vote of 11 to 1, defeated the

motion to extend the franchise and it expired by its

terms on March 31.

II

Golden State filed this action in the United States

Distriet Court for the Central Distriet of California, al-

leging that the city’s action was pre-empted by the

NLRA and violated the company’s rights to due process

and equal protection. It sought declaratory and injunc-

tive relief and damages. The District Court found that

5a

it was “undisputed that the sole basis for refusing to

extend [Golden State’s} franchise was its labor dispute

with its Teamster drivers,” 520 F. Supp. 191, 193

(1981); that the Council had threaten fed] to allow

Yellow Cab’s franchise to terminate unless it entered into

a collective bargaining agreement with the Teamsters,”

id., at 194; and that the Council had denied the company

an essential weapon of economic strength—the ability to

wait out a strike. On the basis of the pre-emption claim,

the District Court granted Golden State’s motion for a

preliminary injunction to preserve the franchise. /bid.

The Court of Appeals for the Ninth Circuit found “am-

ple evidence” in the record to support the District Court’s

finding, but nevertheless vacated the injunction. 686 F.2d

758, 759, 762 (1982). The court reasoned that Golden

State had little chance of prevailing on its pre-emption

claim or on the other grounds it asserted. This Court

denied Golden State’s petition for certiorari. 459 U. S.

1105 (1983).

Following litigation on unrelated issues, and with the

company having abandoned its equal protection claim, the

District Court granted summary judgment for the city.

App. to Pet. for Cert. 11a. Golden State had not moved

for summary judgment in its favor. The Court of Ap-

peals affirmed, holding that the city’s action was not pre-

empted. 754 F.2d 830 (1985). The court felt that, when

the activity regulated is only a peripheral or incidental

concern of labor policy, traditional municipal regulation

is not pre-empted. The court found nothing in the record

to suggest that the city’s nonrenewal decision “was not

concerned with transportation.” Id., at 833. Moreover,

to avoid undue restriction of local regulation, “only ac-

Antitrust claims were asserted in a second amended complaint

filed by Golden State. The District Court granted the city partial

summary judgment as to these claims, 563 F. Supp. 169 (CD Cal.

1983), and the Court of Appeals affirmed. 726 F.2d 1430 (CA9

1984). We again denied certiorari. 471 U.S. 1008 (1985).

Last Term, in Metropolitan Life Ins. Co. v. Massachu-

setts, 471 U. S. 724 (1985), we again noted: “The Court

has articulated two distinct NLRA pre-emption princi-

ples.” Id., at 748. See also Belknap, Inc. v. Hale, 463

U. S. 491, 498-499 (1983). The first, the so-called Gar-

mon pre-emption, see San Diego Building Trades Coun-

cil v. Garmon, 359 U.S. 236 (1959), prohibits States

ing events have . . . ‘irrevocably eradicated the effects of the alleged

violation. Los Angeles v. Lyons, 461 U.S. 95, 101 (1983), quoting

County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). We con-

clude, therefore, that the case is not moot.

This case, however, concerns the second pre-emption

principle, the so-called Machinists pre-emption. See Ma-

chinists v. Wisconsin Employment Relations Comm'n,

427 U. S. 132 (1976). This precludes state and municipal

regulation “concerning conduct that Congress intended

to be unregulated.” Metropolitan Life Ins. Co. v. Massa-

chusetts, 471 U.S., at 749.“ Although the labor-manage-

ment relationship is structured by the

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v. Berkeley, ante, at 265. And the fact that the city acted through

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(1960), and that Congress’ decision to prohibit certain

forms of economic pressure while leaving others unreg-

ulated represents an intentional balance between the

uncontrolled power of management and labor to further

their respective interests. Machinists, 427 U. S., at

146, quoting Teamsters v. Morton, 377 U. S. 252, 258

259 (1964). States are therefore prohibited from impos-

ing additional restrictions on economic weapons of self-

help, such as strikes or lockouts, see 427 U. S., at 147,

unless such restrictions presumably were contemplated by

Congress. “Whether self-help economic activities are em-

ployed by employer or union, the crucial inquiry regard-

ing pre-emption is the same: whether ‘the exercise of

plenary state authority to curtail or entirely prohibit

self-help would frustrate effective implementation of the

Act’s processes. Id., at 147-148, quoting Railroad

Trainmen v. Jacksonville Terminal Co., 394 U. S. 369,

380 (1969).

There is no question that the Teamsters and Golden

State employed permissible economic tactics. The drivers

were entitled to strike—and to time the strike to coincide

with the Council’s decision—in an attempt to apply pres-

sure on Golden State. See NLRB v. Insurance Agents,

361 U. S., at 491, 496. And Golden State was entirely

justified in using its economic power to withs ind the

strike in an attempt to obtain bargaining concessions

from the union. See Belknap, Inc. v. Hale, 463 U. S., at

493, 500 (employer has power to hire replacements dur-

ing an economic strike); American Ship Building Co. v.

NLRB, 380 U. S. 300, 318 (1965) (at bargaining im-

passe employer may use lockout solely to bring economic

press ue on union).

The parties’ resort to economic pressure was a legiti-

mate part of their collective-bargaining process. Machin-

ists, 427 U. S., at 144. But the bargaining process was

thwarted when the city in effect imposed a positive dura-

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about the adjustments and agreements which the Act in

itself does not attempt to compel”) .

The Act leaves the bargaining process largely to the

parties. See H. K. Porter Co. v. NLRB, 397 U.S. 99, 103

(1970). It does not purport to set any time limits on

negotiations or economic struggle. Instead, the Act pro-

vides a framework for the negotiations; it “is concerned

primarily with establishing an equitable process for de-

termining terms and conditions of employment.” Metro-

politan Life Ins. Co. v. Massachusetts, 471 U.S., at 753.

See also § 1, as amended, of the NLRA, 29 U.S.C. § 151

(Act achieves national policy “by encouraging the prac-

tice and procedure of collective bargaining”) .

The legislative history, too, makes clear that the Act

and the National Labor Relations Board were intended to

facilitate bargaining between the parties. The Senate

Report states: “Disputes about wages, hours of work,

and other working conditions should continue to be re-

solved by the play of competitive forces This bill

compulsory arbitration.” S. Rep. No. 573, 74th Cong.,

Ist Sess., 2 (1935). Senator Wagner, sponsor of the

NLRA, said that the Board would not usurp the role of

free collective action. See 79 Cong. Rec. 6184 (1935).

See also id., at 7574 (Sen. Wagner affirming that the

Act encourages “voluntary settlement of industrial dis

putes”).

findings of pre-emption in Machinists and in its prede

cessor, Teamsters v. Morton, 377 U.S. 252 (1964). In

some areas of labor relations that the NLRA left un-

regulated, we have concluded that Congress contemplated

state regulation. See Metropolitan Life Ins. Co. v. Massa-

chusetts, 471 U.S., at 754-758; New York Tel. Co. v.

New York Labor Dept., 440 U.S. 519, 540-544 (1979)

6

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vately local transit company.

v. Missouri, 374 U.S. 74 (1963); ef. Bus Employees v.

Wisconsin

391-392 (1951). Nor in this case

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Court’s holding is best illustrated by comparing it to this

Court’s initial cases involving federal labor pre-emption.

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vided by a court rather than a state labor agency. See

id., at 487, 499-501.

The opinions in both Bethlehem Steel and Garner ob-

served that Congress had furnished no guidance to the

Court as to whether or not state regulation should be

pre-empted:

essen

general of guides to construction of the Act, as it

sometimes does, by saying that its regulation either

shall or shall not exclude state action.” Bethlehem

Steel, supra, at 771

“The national Labor Management Relations Act,

as we have before pointed out, leaves much to the

states, though Congress has refrained from telling

us how much.” Garner, supra, at 488 (footnote

omitted).

The Court stated in both that it was forced simply to

divine the will of Congress by implication

“We must spell out from conflicting indications of

will the area in which state action is

still permissible.” Garner, supra, at 488.

From the acorns of these two very sensible decisions

has grown the mighty oak of this Court’s labor pre-

emption doctrine, which sweeps ever outward though still

totally uninformed by any express directive from Con-

gress. The National Labor Relations Board, organized

management, and organized labor have vied with each

other in urging the Court to sweep into the maw of labor

relations law concerns that would have been regarded as

totally peripheral to that body of law by the Congresses

which enacted the Wagner Act and the Taft-Hartley Act.

16a

Today we are told that a eity, not seeking to place its

weight on one side or the other of the scales of economic

warfare, may not condition the renewal of a taxicab

franchise on the settlement of a labor dispute. The set-

tlement of that dispute would have enabled the company

to put its taxis back on the streets where the franchise

presumably contemplated they would be. The Court says

that since the Labor Board may not structure an ideal

balance of collective-bargaining weapons, the city may

not consider the existence of a labor dispute in deciding

whether to renew a franchise. See ante, at 619-620 [12a-

13a]. We are further told that because a State may not

legislate to provide uninterrupted service to the public by

prohibiting a strike of public utility employees, a city may

not act upon its views of sound transportation policy to

refuse to renew a taxi franchise unless the franchisee

settles a labor dispute and returns its cabs to the pur-

pose for which the franchise exists. See ante, at 617-618

{lla-12a]. Such sweeping generalizations commend

themselves neither to common sense nor to whatever

hypothetical “intent of Congress” as can be discerned in

an area so remote from the core concerns of labor-

management relations addressed by federal labor law.

Federal pre-emption of state law is a matter of con-

gressional intent, presumed or expressed. Because Con-

gress cannot foresee the various ways in which state

laws might rub up against the operation of federal stat-

utes, the Court in a multitude of cases has held state

regulation pre-empted even when Congress has not ex-

pressed any intent to pre-empt because of the danger that

the existence of federal and state regulations side by side

will interfere with the achievement of the objectives of

the federal legislation. The entire body of this Court’s

labor law pre-emption doctrine has been built on a series

of implications as to congressional intent in the face of

congressional silence, so that we now have an elaborate

pre-emption doctrine traceable not to any expression of

17a

Congress, but only to statements by this Court in its

previous opinions of what Congress must have intended.

The Court today doffs its hat to the legislative history

of the Wagner Act and comes up with the following

three items:

1 The Senate Report states: ‘Disputes about

wages, hours of work, and other working conditions

should continue to be resolved by the play of com-

petitive forces. This bill in no respect regu-

lates or even provides for supervision of wages or

hours, nor does it establish any form of compulsory

arbitration.’

2] Senator Wagner, sponsor of the NLRA, said

that the Board would not usurp the role of free col-

lective action.

3] Senator Wagner affirm[ed] that the Act en-

courages ‘voluntary settlement of industrial dis-

putes.’” Ante, at 617 [10a] (citations omitted).

These three bits of legislative history furnish absolutely

no support for the result of the Court reaches teday. The

observations that the Wagner Act leaves it to the parties

to resolve their disputes by the play of competitive forces,

that the Labor Board would not usurp the role of free

collective action, and that the Act encourages voluntary

settlement of industrial disputes, simply do not speak to

the question whether a city may condition the renewal

of a taxicab franchise on the settlement of a labor dis-

pute. I do not believe that Congress intended the labor

law net to be cast this far, and I therefore dissent.

18a

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 87-6074

D.C. No. CV-81-1519-AAH

GOLDEN STATE TRANSIT Cokr., a California corporation,

d/b/a Yellow Cab of Los Angeies,

Plaintiff-Appellant,

v.

City oF Los ANGELES, a municipal corporation,

Defendant-A ppellee.

Appeal from the United States District Court

for the Central District of California

A. Andrew Hauk, District Judge, Presiding

Argued and Submitted

February 2, 1988—Pasadena, California

Filed September 15, 1988

Before: J. Clifford Wallace, Arthur L. Alarcon and

Robert R. Beezer, Circuit Judges.

Opinion by Judge Beezer; Concurrence by Judge Alarcon

Zachary D. Fasman and Ward L. Smith, Crowell &

Moring, Washington, D.C., for the plaintiff-appellant.

John F. Haggerty, Assistant City Attorney, Los An-

geles, California, for the defendant-appellee.

19a

OPINION

BEEZER, Circuit Judge:

In Golden State Transit Corp. v. City of Los Angeles,

475 U.S. 608, 618 (1986), the Supreme Court held, that

the City of Los Angeles (“City”) could not condition re-

newal of a taxi company’s franchise on settlement of a

labor dispute. The Court observed that such an action

“destroyed the balance of power designed by Congress

in the National Labor Relations Act], and

Congress’ decision to leave open the of

weapons.” Id. at 619. The Court concluded that

was remanded to the district court for further proceed-

ings.

On remand, appellant Golden State Transit Corpora-

tion (“Golden State”) sought damages from the City for

nonrenewal of its franchise. The district court concluded

that it had the authority to grant injunctive relief and

also ancillary monetary relief, but that it did not have

the authority to grant compensatory damages unuer 42

U.S.C. § 1983, based on an alleged NLRA violation or

Supremacy Clause pre-er:piion. The Court also found

that it did not have the authority to award damages un-

der any inherent power it possessed. The district court

certified the question for interlocutory appeal. Golden

at 619-20. The facts preceding the Supreme Court deci-

sion are as follows:

In early 1980, Golden State, which operated a taxicab

company, applied to the City for renewal of an operating

franchise. Golden State operated 400 cabs. The fran-

chise was due to expire on March 31, 1981.

In October 1980, before the renewal decision was taken

up by the City, a labor contract with Golden State’s

drivers expired. A short-term labor contract was nego-

tiated between Golden State and its drivers, to end on

February 10, 1981.

On February 11, 1981, Golden State’s drivers struck.

In view of the strike, the City postponed action on re-

newal of Golden State’s franchise until February 17,

1981.

On February 17, 1981, the City Council decided to ex-

tend Goldau State’s franchise from March 31, 1981 to

April 30, 1981, on condition that, prior to March 27,

1981, the Council decided that

|

tion renewal of Golden State’s taxicab franchise on settle-

ment of its labor dispute. See Golden State, 475 U.S. at

610-11. A subsequent motion to extend the franchise

was defeated.

On March 31, 1981, the Golden State Taxicab fran-

chise expired.

ers, AFL-CIO v. Wisconsin Employment Relations Com-

m'n, 427 U.S. 132 (1976), the City’s action interfered

with the free play of economic forces’ [citation omit-

ted] in collective bargaining between the compan

its drivers, Golden State, 475 U.S. at 614, and that such

a local action—conditioning franchise renewal on labor

gaining was precisely the conduct which “ ‘Congress in-

tended to be unregulated.’” Golden State, 475 U.S. at

614, cuoting Metropolitan Life Ins. v. Massachusetts,

471 U.S. 724, 749 (1985). The Supreme Court agreed

with Golden State that the NLRA preempted this action

by the City.

the fair market value of Golden State’s assets

date of the City’s action, less any sum Golden State

ceived pursuant to bankruptcy proceedings.

authority to grant additional compensatory damages to

Golden State.

Following full briefing and argument, the district

court concluded that it did not have authority to

further compensatory damages. The court cited three

reasons: First, Golden State was not entitled to damages

under 42 U.S.C. § 1983 for the alleged NLRA “violation”

by the City. Second, while the Supremacy Clause pre-

empted State law, it did not entitle Golden State to dam-

ages under 42 U.S.C. § 1983. Third, the district court

nad no inherent authority to award further damages.

On April 23, 1987, the district court stayed trial on

the amount of ancillary monetary relief to certify the

compensatory damage question for interlocutory appeal.

Golden State timely appeals. We have jurisdiction pur-

suant to 28 U.S.C. § 12$2(b).

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enforceable rights, privileges, or immunities within the

meaning of section 1983.” Id. at 422.

(1987), we stated “(slection 1983, as interpreted

Thiboutot [citations omitted] and its progeny, enforces

federal statutory rights only against direct violations of

the federal statute in question.” 810 F.2d at 851, n.9;

see also Pennhurst, 451 U.S. at 28; Middlesex County

Sewerage Authority v. National Sea Clammers Ass'n,

453 U.S. 1, 19 (1981) (section 1983 requires that “a

federal statute [be] . . . violated”).

Here, the federal statute in question is the NLRA.

The provision at issue is section 80d), as amended, 29

U.S.C. § 158/d).

Generally, this statute imposes mutual obligation s]!“

upon “the employer and the representative of the em-

ployees” to “bargain collectively” and “in good faith.”

Specifically, 29 U.S.C. 158 0a and (b impose obli-

gations on “an employer” and on “a labor organization.”

Actions of a third-party, not employer or employee labor

organization, do not give rise to a claim for damages

against the third-party under these provisions.

Since the City was at no time party to the collective

bargaining agreement, the City cannot be subject to a

section 1983 action premised on a party's alleged viola-

tion of 2° U.S.C. § 158. We do not believe that the NLRA

was intended to transform actions of third-parties’, nei-

t

by trustees for an employment benefit trust under 29

U.S.C. § 158/d), we noted:

We do not reach the merits of the trustees’ section

8(d) [section 158 0d)] theory, however, for we have

395 Health & Welfare Trust Fund v. Conquer Cart-

age Co., 753 F.2d 1512, 1515-17 (9th Cir. 1985).

Waggoner v. Dallaire, 767 F.2d 589, 592 (9th Cir. 1985),

cert. denied, 475 U.S. 1064 (1986).

Since the City did not violate a provision of the NLRA,

and since Congress has limited relief for such an action

IME

, 447 US. 752. 764 (1980).

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right. See White Mountain Apache, 810 F.2d

at 848. Accordingly, the inherent authority to grant re-

lief in order to secure an individual right under the in-

herent authority of the federal courts may not be exer-

cised here.

Section 1983 was intended to supplement remedies pro-

vided by the States. However, McNeese v. Board of Edu-

cation, 373 U.S. 668, 671 (1966), Alan v. McCurry, 449

U.S. 90 (1980), and Monroe v. Pape, 365 US. 167

(1961), do not support the proposition, argued by Golden

State, that inherent authority exists in the federal courts

to award compensatory damages where section 1983 dam-

ages are unavailable. Toll v. Moreno, 458 U.S. 1 (1982),

involved enforcement of a stay preserving issues for ap-

peal; that case provides no guidance in resolving the

raised here. On the facts in

liams (White Mountain), 810 F.2d 844 (9th Cir.), cert.

Ct. 940 (1987). In White Mountain we

=

90

I write separately on the issues discussed in Rubric

Section 1983 reads as follews:

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or

causes to be subjected, any citizen of the United

States or other person within the jurisdiction there-

of to the deprivation of any rights, privileges, or

immunities secured by the Constitution and laws,

shall be liable to the party injured in an action at

law, suit in equity, or other proper proceeding for

redress. For the purposes of this section, any Act of

Congress applicable exclusively to the District of

Columbia shall be considered to be a statute of the

District of Columbia.

(Emphasis added). One month before the final decision

in White Mountain was filed, the Supreme Court, in

Wright, 107 S. Ct. at 771, said that under its prior rul-

ings, “if there is a state deprivation of a ‘right’ secured

by a federal statute, § 1983 provides a remedial cause of

action... We did not discuss Wright in our decision

in White Mountain.

to use economic weapons. Id. at 615-16.

In the case sub judice, the City of Los Angeles de-

prived Golden State of the statutory right to engage in

the collective process free from third-party

interference. 29 U.S.C. § 158(d) ; Golden State, 475 U.S.

at 618. Thus, under Wright, Golden State would appear

to have a cause of action for damages under section 1983.

However, because third party interference is not expressly

prohibited by the NLRA, the City did not directly violate

the statute. Therefore, while the City interfered with

Golden State’s rights, White Mountain compels us to

hold that section 1983 damages are not available because

there was no direct violation of a statute by the City.

Therefore, I do not join in that of the

opinion and offer no opinion as to what ruling would be

made if it were necessary to reach the issue.

I concur in the remainder of the opinion.

f

= en ee ee Ne

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

UNITED STATES CONSTITUTION

ARTICLE VI, CLAUSE 2

Constitution, and the Laws of the United States

NATIONAL LABOR RELATIONS ACT,

SECTION 8(d), AS AMENDED,

29 U.S.C. § 158 (d

(d) For the purposes of this section, to bargain col-

meet at reasonable times and confer in good faith with

respect to wages, hours, and other terms and conditions

requested by either party, but such obligation does not

compel either party to agree to a proposal or require the

making of a concession... .

THE CIVIL RIGHTS ACT OF 1871

42 U.S.C. § 1983

Every person who, under color of any statute, ordi-

nance, regulation, custom, or usage, of any State or

Territory or the District of Columbia, subjects, or causes

to be subjected, any citizen of the United States or other

person within the jurisdiction thereof to the deprivation

of any rights, privileges, or immunities secured by the

OPPOSITION

BRIEF

Bowne of Los Angeies. Inc. Law Printers (213) 742-4600

PARTIES TO THE PROCEEDINGS BELOW

All Parties to the proceedings below subject to this

petition for a writ of certiorari are set forth in the caption

of the petition.

N

TABLE OF CONTENTS

QUESTION PRESENTED ....................

PARTIES TO THE PROCEEDINGS BELOW...

STATEMENT OF TERE CASE .................

POST REMAND PROCEEDINGS .............

DECISION BELUUVUVWGWW

REASONS FOR DENYING THE WRIT........

I

REFUSAL TO GRANT DAMAGES DOES NOT

NEGATE THIS COURT’S DECISION IN

GOLDEN STATE TRANSIT CORP. V. CITY OF

II

THE RULING BELOW IS IN CONCERT WITH

THIS COURT'S INTERPRETATION OF 42

U.S.C. SECTION 1906?ù%//0:sm.

III

SECTION 1983 RELIEF IS NOT APPROPRI-

ATE IN PREEMPTION CASES .............

SE BBG uS bec ccsccceseoecccccccccces

iv

TABLE OF AUTHORITIES

Cases

Page

Bell v. Hood, 327 U.S. 678 (1946) .............. 8

Bivens v. Siz Unknown Named Agents of the Fed.

Bureau of Narcotics, 493 U.S. 388 (1971) ...... —

Brown v. Hotel and Restaurant Employees and Bar-

tenders Union Local 54, 468 U.S. 491 (1984) ... 12,13

Chapman v. Houston Welfare Rights Organization,

r e 8, 13

Consolidated Freightways Corp. v. Kassel, 637 F.2d

F so ncecnesdcesasdbeneceres 12

Fauz-Burhans v. County Com’rs of Frederick

County, 674 F.Supp. 1172 (D.Md. 1987)....... 15

Golden State Transit v. City of Los Angeles, 475 U.S.

K 3, 4, 7, 10, 11

Gould, Inc. v. Wisconsin, 750 F.2d 608 (7th Cir.

1984), affirmed on other grounds, 475 U.S. 282

eee ene eee eee 14

J&J Anderson v. Town of Erie, 767 F.2d 1469 (10th

D gnndeabedaedsseaesbsaseoes 14

Kennecott Corp. v. Smith, 637 F.2d 181 (5th Cir

eee 12

Machimsts v. Wisconsin Employment Relations Com-

mission, 427 U.S. 132 (1976))))7/⸗ 13

Maine v. Thihoutot, 448 U.S. 1 (1980) ........... 9

Middlesex County Sewage Authority v. National Sea

Clammers, Assn., 453 U.S. 1 (1981) ......... 9,11,12

New York Airlines, Inc. v. Dukes County, 623

F.Supp. 1435 (D. Mass. 1985) ............... 15

Owen v. City of Independence, Mo., 445 U.S. 622

eee eee 7

5

*

TABLE OF AUTHORITIES

CASES

Pennhurst State School and Hospital v. Haldeman,

reer. eee 9, 11

Pesticide Public Policy Foundation v. Village of

Wauconda, F.Supp. 423 (N.D. 511 1985)

affirmed 826 F.2d 1068 (7th Cir. 1987)........ 14

Pirolo v. City of Clearwater, 711 F.2d 1006, rehear-

ing denied, 720 F.2d 688 (11th Cir. 1983) ..... 14

Private Truck Council of America, Inc. v. Quinn, 476

rere eee ee ce 12

San Diego Building Trades Connell etc. v. Garrison,

iD << eee eee 12

Segundo v. Rancho Mirage, 813 F.2d 1387 (9th Cir.

D ! ! eee ee 14

Touche Ross & Co. v. Redington, 442 U.S. 560 (1979) 7,9

United Nuclear Corp. v. Cannon, 564 F.Supp. 581

7 15

White Mountain Apache Tribe v. Williams, 810 F. 2d

844 (9th Cir. 1987), cert. denied 107 8.Ct. 940

D eee eee ds esse eee 13

Wright v. Roanoke Redev. and Housing [479 U.S.

418] 107 S.Ct. 766 (1987) ))): 6, 9, 11. 12

Yakima Indian Nation v. Whiteside, 617 F.Supp. 735

(E.D. Wash. 1985) affirmed in part on other

grounds, 828 F.2d 529 (9th Cir. 1987) ........ 14

Constitution

United States Constitution, Fourth Amendment i)

United States Constitution, Eleventh Amendment 7

= P ²˙ A eS —˙ ¼ůͥmꝛmjẽirb̃̃ mẽůſ ee ee eee eee eee eee eee —— 3

oe

TABLE OF AUTHORITIES

Page

Statutes

Civil Rights Act, United States Code, Title 42

es i, 7, 9, 11, 12, 13, 14, 15, 16

DP abs couasecetoruetasetdécetoees 14

Los Angeles Municipal Code, Section 71.02 1

National Labor Relations Act.

eee ’r⸗ ô! eee eee 12. 13

Section 8, as amended, 29 U.S.C. Section 158

eee eee 10, 11. 12

e 10

. 10

D onnetecigthecnanmennts 10

eee ene 10

rr, senses 9, 10, 11

Section 10, 29 U.S.C. Section 160. 12

United States Code, Title 28, Section 1343(3) ... 8,13

No. 88-840

In the Supreme Court

United States

OcToBER TERM, 1988

GOLDEN State TRANSIT CorP.,

Petitioner,

vs.

Crry or Los ANGELES,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

quests that this Court deny the petition for writ of

certiorari, seeking review of the Ninth Cireuit's opinion in

STATEMENT OF THE CASE

Golden State held a franchise to operate taxicabs in the

City of Los Angeles pursuant to approval by the City

Council under municipal law. Los Angeles Municipal

Code, Section 71.02. Golden State’s franchise was due to

expire by its own terms, as provided in the franchise

ordinance, on March 31, 1981. The City ordinance grant-

With the non-renewal of the franchise Golden State

initiated litigation. The Federal District Court initially

granted an injunction to allow Golden State to continue

4

This Court, in Footnote 6 of its Opinion, 475 U.S. at p.

615, Pet. App. p. 9a, also stated as an objective factor to

support the purported finding that the renewal was sub-

ject to the condition of a settlement of the strike that the

Council’s agent, namely the Assistant City Attorney, had

revealed that the condition was City policy.”

ultimately denying renewal of Yellow Cab's franchise, the City

deprived Yellow Cab of an economie weapon — the opportunity

simply to outlast the strikers.” 686 F.2d 758, 759 (9th Cir. 1982),

cert. denied, 452 U.S. 1105 (1983) (emphasis in original. )

The statement of the City Attorney, however, and the dialogue

which preceded it was as follows:

BY JOHN HAGGERTY, ASSISTANT CITY ATTORNEY:

Yes. As and now the franchise dies March 31st.

BY MR. CUNNINGHAM (a City Councilman):

And if there is an action before March 31, the Council can

respond? Right?

BY MR. JOHN HAGGERTY:

Well, the Council would have to make the necessary finding by

this Friday at the latest for the extension to go until the end of

April. For it to go beyond the end of April, a second ordinance or

new ordinance would also have to be passed and published by the

end of this month.

BY MR. CUNNINGHAM:

So you are saying on Friday the Council could take action,

that would still give a timely activity to the extension of the

franchise.

BY MR. JOHN HAGGERTY:

Well, yes. Council (sie) has to make the necessary findings by

this Friday at the latest to extend the franchise to April 31. For

the franchise to be extended beyond that an ordinance would

also have to be passed and published by the end of (sic) this

month.

5

Golden State, in its petition, asserts that the City did

not present any evidence at the summary judgment pro-

ceeding in the District Court conducted on post-remand.

To the contrary, evidence of the proceedings at the City

Council, as hereinabove described, was presented to at-

tempt to show that the evidence did not support a conclu-

sion that the City Council conditioned the renewal of the

franchise on a settlement of the strike.

Golden State, in Footnote 3 of the Pet., claims that at

the time of the cease and desist order issued by the City

to Golden State, Golden State was involved in an involun-

tary Chapter 11 reorganization initiated by one of its

creditors. The cease and cesist order, however, was issued

on April 29, 1983. Gu that date, Golden State was in

voluntary bankruptcy. Though a creditor had instituted

an involuntary bankruptcy on February 18, 1981, Golden

UNKNOWN:

Well, I think...

BY MR. CUNNINGHAM:

Has this been clearly stated to the parties at odds in this

matter?

BY MR. HAGGERTY:

It has been clearly stated (sic) to those people who have

contacted me and asked me, yes.”

The finding referred to was a finding that it was in the best

interest of the City to allow for such extension. The record shows

that the Assistant City Attorney was responding to a question as

to whether the parties had been informed that the Council had to

make the necessary finding by Friday and that the ordinance had

to be passed and published by the end of the month. Golden

State, itself, had never claimed during the course of the litiga-

tion that the Assistant City Attorney made any statements

telling petitioner he strike had to be settled for the franchise to

be renewed.

6

State, on its own, converted it into a Chapter 11 proceed-

ing on August 10, 1981. (LA-81-01812 JD.) On March 7,

1985, the proceeding was converted into a Chapter 7

liquidation.

POST REMAND PROCEEDINGS

Golden State, in Footnote 5 of the Petition, states that

the injunctive relief granted on remand, after this Court’s

opinion, would be of no value since it long ago was forced

to liquidate its business. Golden State claims that the

cease and desist order issued by the City destroyed its

business (p. 3 of the Petition). That order was issued on

April 29, 1983. Yet counsel for Golden State, at the time

of oral argument to this Court on December 4, 1985,

stated, in response to the question of mootness, that the

company was ready to resume operations, even though it

was in Chapter 11 bankruptcy. 475 U.S. at p. 613, ftn. 3;

Pet.App. p. 6a.

DECISION BELOW

The Ninth Cireuit opinion does not conflict with Wright

v. Roanoke Redev. and Housing [479 U.S. 418] 107 S.Ct.

766 (1987).

“The City had contended at the time the case was before this Court

that the case was moot since the franchise, even if it had been

renewed in March of 1981, would have expired March 31, 1985, the

proposed term of the renewal franchise being four years.

7

REASONS FOR DENYING THE WRIT

I

REFUSAL TO GRANT DAMAGES DOES NOT NE-

GATE THIS COURT’S DECISION IN GOLDEN

STATE TRANSIT CORP. V. CITY OF LOS ANGELES.

Golden State complains of the relief given by the

district court, in this case, namely injunctive relief and

ancillary relief based on the fair market value of Golden

State’s assets as of the date of the City’s action, less any

sum Golden State received pursuant to the bankruptcy

proceedings. Golden State, argues that this relief is

meaningless. But that assertion is not consistent with the

position Golden State took before the Court in Golden

State as reflected in Footnote 3 of 475 U.S. at p. 613,

Pet.App. 6a. Rather, it is shown therein that counsel for

Golden State, in response to the City’s contention that

the case was moot, said the company was ready to resume

operations. The injunctive relief allows for such resump-

tion of operations.

Golden State asserts that it is entitled to compensatory

damages because very injury should have its proper

redress. But that assertion is not the law. For example,

this Court has recognized immunities of varying scope for

different state and local officials sued under Section 1983.

See cases cited, Owen v. City of Independence, Mo., 445

U.S. 622, 637-638 (1980). There is also the Eleventh

Amendment immunity afforded States in 1983 actions.

And, as the Court stated in Touche Ross & Co. v. Reding-

ton, 442 U.S. 560, 568 (1979) “the fact that a federal

statute has been violated and some person harmed does

not automatically give rise to a private cause of action in

favor of that person.”

8

Golden State cites, in Footnote 8, in support of its

claim for compensatory damages, the cases of Bivens v.

Siz Unknown Named Agents of the Fed. Bureau of Narcot-

tes, 403 U.S. 388 (1971) and Bell v. Hood, 327 U.S. 678

(1946). The Ninth Cireuit decision below, in Part C, Pet.

App. p. 27a, all three judges concurring, pointed out why

those cases were not apposite; namely, that they involved

individual rights guaranteed by the Fourth Amendment.

The Constitutioual provision involved here, however, as

pointed out in the decision below, is the Supremacy

Clause which creates no individual constitutional rights.

Pet.App. p. 28a. Chapman v. Houston Welfare Rights

Organization, 441 U.S. 600 (1979) held that a claim of

preemption of state law by federal social security laws is

not a claim within the jurisdictional requisites of 28

U.S.C. Section 1343(3). Chapman, therefore, stands for

the proposition that the Supremacy Clause establishes

federal-state priorities and does not create individual

rights within the meaning of 28 U.S.C. Section 1343 (3):

We must conclude that an allegation of ineompat-

ibility between federal and state statutes and regula-

tions does not, in itself, give rise to a claim, ‘secured

by the Constitution’ within the meaning of Sec.

1343 (3).“ Id. at p. 615.

None of the eases eited by Golden State in Footnote 10

hold that a local government ean be liable for damages

when there is neither a violation of a Constitutional

provision securing individual rights nor a violation of a

federal statutory right.

9

II

THE RULING BELOW IS IN CONCERT WITH THIS

COURT'S INTERPRETATION OF 42 U.S.C. SEC-

TION 1983.

Maine v. Thiboutot, 448 U.S. 1, 4 (1980) held that

Section 1983 was available to enforce violations of federal

statutes. Wright v. Roanoke Development and Housing

Authority, 479 U.S. 418, 107 S.Ct. 766, 770 (1987). Golden

State claims that the Ninth Cireuit attempted to fit this

ease into the exception to the Thiboutot rule created in

Pennhurst State School and Hospital v. Haldeman, 451

U.S. 1 (1981). Pennhurst and Middlesex County Sewage

Authority v. National Sea Clammers, Assn., 453 U.S. 1

(1981) recognized two exceptions to the applications of

Section 1983 to remedy statutory violations. Wright, 107

S.Ct. at p. 770. The first question, however, before there

can be a consideration of whether either of the exceptions

is applicable is did the City violate a federal statute. The

decision below, rather than have to consider an exception,

correctly concluded that the City did not violate the

National Labor Relations Act, specifically Section 8(d),

as amended, 29 U.S.C. Section 158(d). Pet.App. 24a.

Golden State, therefore, failed to clear the first hurdle

presented by the Thiboutot-Pennhurst-Sea Clammers line

of cases.

Golden State, however, criticizes the Ninth Cireuit in

concluding there was no statutory violation for its “fixa-

tion upon the express language of the statute” (Pet.,

p. 17). Yet in any case involving the interpretation of a

statute, the analysis must begin with the language of the

statute itself. Touche Ross & Co. v. Redington, 442 U.S.

560, 568 (1979).

10

This Court, in ruling that the City’s action had frus-

trated effective implementation of the NLRA processes

(Golden State, at p. 615, Pet.App. 8a) and thus was

preempted from conditioning Golden State’s franchise

renewal on the settlement of the labor dispute, focused on

8(d), as amended, 29 U.S.C. Section 158 (d), 475 U.S. at

p. 616; Pet.App. 90. Golden State is critical of the Ninth

Cireuit for diseussing 8 (d) in connection with 8(a) and

8(b) of the NLRA. (Pet., p. 16, ftn. 16). But 8(d) must

be read in light of 8(a) and 8(b) insofar as these two

latter subsections define an unfair labor practice, which

includes the refusal to bargain collectively, 8 (a) (5) as to

an employer, and 8 (b) (3) as to a labor organization. The

language relied upon by this Court to find preemption in

Golden State was the provision of 8(d) that states that

the obligation to bargain collectively, and thus not commit

an unfair labor practice, “does not compel either party to

agree to @ proposal or require the making of a eonces-

sion. 475 U.S. at p. 616; Pet.App. p. 9a. A violation of

Section 8 is an unfair labor practice, which by the terms

of the statute can only be committed by the employer or

the employee labor organization. The City, as correctly

“Section 8(d) provides (Section 8 is titled “Unfair Labor

Practices”):

(d) “For the purposes of this section, to bargain collectively is

the performance of the mutual obligation of the employer

and the representative of the employees to meet at reasona-

ble times and confer in good faith with respect to wages,

hours, and other terms and conditions of employment, or

the negotiation of an agreement, or any question arising

thereunder, and the execution of a written contract ineorpo-

rated any agreement reached if requested by either party,

—— — —V—L

& proposal or require the making of a concession: ..

(Emphasis added. )

11

pointed out in the decision below, being neither, could

thus not violate Section 8, as amended, 29 U.S.C. Section

158 (Pet.App. 24a, 25a).

Judge Alarcon, though concurring with the decision,

expressed reservations because of this Court’s decision in

Wright v. Roanoke Redev. & Housing.

In Wright, the applicable statute imposed a rent ceiling

for rents charged to low-income people living in public

housing projects. By the terms of the statute this created

an obligation on anybody charging such rents upon such

persons. The decision specifically stated, as to the rent

limitation: “This was a mandatory limitation focusing on

the individual family and its income.“ 93 L.Ed.2d 781,

792; 107 S.Ct. 766, 774 (5). The mandatory provisions of

Section 8 of the NLRA, on the other hand, apply specifi-

eally, and only, to the employer and employee labor

organizations. Section 8 of the NLRA defines conduct

which would constitute an unfair labor practice and 8(d),

as amended, which was the basis of the Machinist rule of

preemption being applied to the City’s action (Golden

State, 475 U.S. at p. 614, Pet.App. p. 7a), defines conduct

of an employer which would not constitute an unfair labor

practice, nothing more.

In addition, even if there had been, arguendo, a viola-

tion of Section 8 both the Pennhurst and Sea Clammers’

exceptions would apply. The Pennhurst exception applies

where the statute violated did not create enforceable

rights, privileges or immunities within Section 1983. See-

tion 8 defines the mutual obligations of employers, em-

ployees and employee labor organizations in their

relationship with each other. Such being the case the

statute, by its terms, did not impose any binding obliga-

tion upon the City. Thus the Pennhurst exception would be

applicable. Pennhurst, 451 U.S. at pp. 27, 28.

12

The Sea Clammers’ exception to the availability of a

Section 1983 remedy, when Congress has foreclosed such

an enforcement of the statute, would also be applicable

assuming, arguendo, a violation of Section 8 since when

an activity is arguably subject to Section 7 or Section 8 of

the NLRA, the state and federal courts must defer to the

exclusive competence of the NLRA. San Diego Building

Trades Council, etc. v. Garrison, 359 U.S. 236, 245 (1959).

Enfair labor practices are considered by the NLRB pur-

suant to Section 10 of the NLRA, 29 U.S.C. 160.

The decision below and Wright are clearly distinguisha-

ble on their facts, namely the nature of the language of

the respective statutes. The Ninth Circuit result was

correct and fair in holding that the City did not violate a

statute, which by its terms, it could not violate.

III

SECTION 1983 RELIEF IS NOT APPROPRIATE IN

PREEMPTION CASES.

Though three Justices may have wanted to hear Private

Truck Council of America, Inc. v. Quinn, 476 U.S. 1129

(1986), a case involving the question of whether Section

1983 relief is appropriate in a Commerce Clause case

because of conflicting lower court decisions’ on that issue

this ease is not the appropriate vehicle to resolve that

The conflict, referred to by the dissenting Justices, between

Consolidated Freightways Corp. v. Kassel, 637 F.2d 1139 (8th Cir.

1984) and Kennecott Corp. v. Smith, 637 F.2d 181, 186 n* (5th Cir.

1980) is not substantial. The decision in Kennecott, contrary to the

weight of authority, stated in a footnote, that the Commerce Clause

ean support an action under Section 1983. The decision, however.

unlike the decision in Consolidated Freightways, did not undertake a

substantial analysis of the issue.

13

conflict. The constitutional provision which is at issue in

this case is the Supremacy Clause, not the Commerce

Clause.

Golden State cites Brown v. Hotel and Restaurant Em-

ployees and Bartenders Union Local 54, 468 U.S. 491

(1984) (Pet., p. 21), a case involving “an actual conflict”

with Section 7 of the NLRA. But Brown is not apposite

since it involved “employee conduct” “protected by See-

tion 7”. The Machinist preemption doctrine, applicable in

this case, on the other hand, specifically applies to con-

duct not protected nor prohibited under the NLRA. Ma-

chinists v. Wisconsin Employment Relations Commission,

427 U.S. 132, 141 (1976).

Though the Supreme Court has never addressed the

question whether the Supremacy Clause creates “rights,

privileges or immunities” within the ambit of Section

1983 in Chapman v. Houston Welfare Rights Organization,

441 U.S. 600, 613-615 (1979), the Court did hold that the

Supremacy Clause is not a substantive constitutional

provision that creates rights within the meaning of 28

U.S.C. Seetion 1343(3).°

The Ninth Cireuit Cour: decision in this case on the

question as to whether Section 1983 relief is appropriate

in a Supremacy Clause case is consistent with other

opinions of that circuit dealing with the issue, namely

White Mountain Apache Tribe v. Williams, 810 F.2d 844

(9th Cir. 1987), cert. denied, 107 S.Ct. 940 (1987) (claim

of preemption of state motor carrier license and use fuel

“Section 1343 (3) is the statutory provision conferring jurisdiction

on federa! district courts to hear actions commenced “(t)o redress

the definition, under color of state law — of any right, privilege or

immunity secured by the Constitution of the United States or by any

Act of Congress, providing for equal rights.”

14

taxes by federal laws governing the harvest and sale of

tribal timber does not come within Section 1983 so as to

authorize Section 1988 .(attorney fees); and Segundo v.

City of Rancho Mirage, 813 F.2d 1387 (9th Cir. 1987)

(claim of preemption of local rent control ordinances

against Indian lands by federal laws does not come within

Section 1983 so as to authorize 1988 attorney fees).

The Ninth Circuit Court of Appeals’ decision is also

cousistent with all other circuits which have recently

passed on this issue. The Seventh, Tenth and Eleventh

Cireuit Courts of Appeal have all decided that federal

preemption claims do not come within the meaning of

Section 1983. Gould, Inc. v. Wisconsin, 750 F.2d 608 (7th

Cir. 1984), affirmed on other grounds, 475 U.S. 282 (1986)

(claim of preemption of state labor laws by the Federal

National Labor Relations Act does not come within See-

tion 1983 so as to authorize Section 1988 attorney’s fees);

J & J Anderson v. Town of Erie, 767 F.2d 1469 (10th Cir.

1985) (claim of preemption of town ordinance by Federal

Aviation Act does not come under Section 1983); Pirolo v.

City of Clearwater, 711 F.2d 1006, rehearing denied, 720

F.2d 688 (11th Cir. 1983) (preemption of city ordinance

by Federal Aviation Act does not come within Section

1983).

A number of district couris have come to the same

conclusion. Yakima Indian Nation v. Whiteside, 617

F.Supp. 735 (E.D. Wash. 1985) affirmed in pact on other

grounds, 828 F.2d 529 (9th Cir. 1987) (federal preemp-

tion claim asserted by the Indian tribe does not come

within the meaning of Section 1983); Pesticide Public

Pslicy Foundation v. Village of Wauconda, 622 F.Supp.

423 (N.D. 511 1985), affirmed 826 F.2d 1068 (7th Cir.

1987) (alleged conflict between village ordinance and

Federal Insecticide, Fungicide and Rodenticide Act does

15

not come within Section 1983); United Nuclear Corp. v.

Cannon, 564 F.Supp. 581 (D. R. I. 1983) (preemption of

state law by the Federal Atomic Energy Act does not fall

within Section 1983); New York Airlines, Inc. v. Dukes

County, 623 F.Supp. 1435 (D. Mass. 1985) (preemption of

county ordinance by the Federal Aviation Act does not

come within Section 1983); Fauz-Burhans v. County

Com’rs of Frederick County, 674 F.Supp. 1172 (D. Md.

1987) (preemption of County zoning ordinance by Fed-

eral Aviation Act would not come within Section 1983).

The issue of whe her Section 1983 relief is appropriate in

a Supremacy Clause case has not produced conflicting

results in the lower court.

16

CONCLUSION

The decision below is correct. It follows all controlling

decisions of this Court. It is consistent with all other

federal cireuit and district court decisions on the issue of

whether preemption claims under the Supremacy Clause

come within the meaning of Section 1983. The petition for

certiorari should be denied.

Respectfully submitted,

JAMES K. Haun,

City Attorney

JOHN F. HaGGeErty,

Assistant City Attorney

By JohN F. HaGGerty,

Assistant City Attorney

Attorneys for Respondent

PROOF OF SERVICE BY MAIL

I am a citizen of the United States and a resident of the

City and County of Los Angeles; I am over the age of

eighteen years and not a party to the within action; my

business address is: 1706 Maple Avenue, Los Angeles,

California.

On December 16, 1988, I served the within Brief in

Opposition in re: “Golden State Transit Corporation vs.

City of Los Angeles” in the United States Supreme Court,

October term 1988, No. 88-840. ;

On the Parties in said action, by placing Three copies

thereof enclosed in a sealed envelope with postage fully

prepaid, in the United States post office mail box at Los

Angeles, California, addressed as follows:

Zachary D. Fasman 2

Paul Hastings, Janofsky & Walker

1050 Connecticut Avenue N. W.

Washington, DC 20036

All parties required to be served have been served.

I certify, under penalty of per ury, that the foregoing is

true and correct.

Executed on December 16, 1988, at Los Angeles,

California 7 5 9

CE CE MEDINA

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

GOLDEN STATE TRANSIT Cokp.,

Petitioner,

v.

City oF Los ANGELES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF OF PETITIONER

ZACHARY D. FASMAN

PAUL, HASTINGS, JANOFSKY

& WALKER

Twelfth Floor

1050 Connecticut Ave., N.W.

Washington, D.C. 20036

Telephone: (202) 223-9000

Attorney for Petitioner

WILSON - Eres Printine Co., Inc. - 789-0096 - WASHINGTON, D.C. 20001

TABLE OF CONTENTS

TABLE OF AUTHORITIES

I. SUPREME COURT REVIEW IS ESSENTIAL

TO PRESERVE THE COLLECTIVE BAR-

GAINING PROCESS AND PREVENT NEGA-

TION OF THIS COURT'S PRIOR DECISION... 1

II. REVIEW IS WARRANTED TO RESOLVE

IMPORTANT ISSUES OF MUNICIPAL LIA-

BILITY 3

III. NO FACTUAL DISPUTES OR OTHER CON-

CERNS RENDER INAPPROPRIATE THE

COURT’S IMMEDIATE CONSIDERATION OF

THE ISSUES ®AISED IN THE PETITION... 6

CONCLUSION 8

ii

TABLE OF AUTHORITIES

CASES

Abood v. Detroit Board of Education, 431 U.S.

209 (1977) :

ANR Pipeline Co. v. Michigan Public Service Com-

mission, 608 F.Supp. 43 (W. D. Mich. 1984)

Chapman v. —

11

K SE

Gillespie v. United States Steel Corp., 379 US.

148 (1964)

Golden State Transit Corp. v. City of Los Angeles,

475 U.S. 608 (1986)

Golden State Transit Corp. v. City of Los Angeles,

520 F. Supp. 191 (C.D. Cal. 1981) —

Goodyear Atomic Corp. v. Miller, —— U.S. ——,

108 S.Ct. 1704 (1988)

Kennecott Corp. v. Smith, 687 F. 2d 181 (Ird Cir.

2 ——ͤ̃

Local No. 438 Construction and General Laborers’

Union v. Curry, 371 U.S. 542 (1963)

Martin-Marietta Corp. v. Bendix Corp., 690 F.2d

558 (6th Cir. 1982

Mills v. Electric Auto-Lite Company, 396 U.S. 375

Re ese

Private Truck Council of America v. Quinn, 476

('§ So fl ee

Radio Station WOW v. Johnson, 326 U.S. 120

(1945) 8

Southland Corp. v. — 465 US. 1 (1984) ......

j-_ Jn Be Bee g

|

e e ee ee e

IN THE

Supreme Court of the United States

OCTOBER TERM, 1988

No. 88-840

GOLDEN STATE TRANSIT CoRP.,

Petitioner,

V.

City oF Los ANGELES,

Respondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

REPLY BRIEF OF PETITIONER

I. SUPREME COURT REVIEW IS ESSENTIAL TO

PRESERVE THE COLLECTIVE BARGAINING

PROCESS AND PREVENT NEGATION OF THE

CU URT’S PRIOR DECISION.

1. The City’s response has not met our basic claim:

that the decision below effectively negates the Court’s

decision in Golden State Transit Corp. v. City of Los

Angeles, 475 U.S. 608 (1986), and threatens the con-

tinued viability of the Machinists preemption doctrine.

Unless the decision below is reversed, Golden State will

have exercised its federally guaranteed right to bargain

only at enormous cost. The City has not questioned and

2

cannot controvert our fundamental argument that the

remedy sanctioned below is inadequate recompense for

the losses suffered by Golden State at the hands of the

City. Golden State has been prevented from operating

for many years because of the City’s unlawful conduct.

The profits lost during those years, as well as the com-

petitive damage caused by the lengthy hiatus in Golden

State’s operations, can be recompensed only through an

award of compensatory damages.

2. Even more critically, there has been and can be no

answer to our claim that the supposed inability of the

federal courts to issue appropriate damage remedies to

parties injured by unlawful municipal compulsion in bar-

gaining effectively renders the Court’s prior decision

meaningless, and the Machinists doctrine of no practical

significance. In Golden State, the most recent of the

Machinists line of cases, the Court reiterated that Con-

gress intended that management and labor would have

the right to bargain free from improper government com-

pulsion. One cannot bargain free from such compulsion

if the price for the exercise of that freedom may be one’s

continuing livelihood. In a practical sense, there is no

distinction between the right and the remedy in this

situation.

3. This Court should not be misled into believing that

what happened to Golden State is unique. We do not ask

the Court to presume that municipal governments

blithely will ignore the dictates of federal law spelled out

in this Court’s prior Golden State decision. It is a com-

monplace, however, that local political leaders frequently

attempt to mediate bargaining disputes in which a strike

may cause public inconvenience, and such mediation ef-

forts readily can evolve into coercion inconsistent with

the will of Congress.

Indeed, that is precisely what happened here. What is unique

about this case is that the City, following unsuccessful mediation

efforts by the Mayor and City Council, granted Golden State and

Court’s consideration, this crucial remedial aspect of the

controversy also requires the Court’s attention.

II. REVIEW IS WARRANTED TO RESOLVE IMPORT-

ANT ISSUES OF MUNICIPAL LIABILITY.

1. The decision below, and the City’s defense of that

decision, rests upon the premise that merely because a

case involves “preemption”, the federal courts are denied

their traditional powers to grant full and effective relief.

This proposition sacrifices responsible evaluation of the

conduct in question for epithetical jurisprudence. In this

case, the City legislated a lawful business out of existence

obvious violence this wrong does to the statutory scheme

created by Congress—cannot be overlooked.

2. Granting a damage remedy against a municipality

for such conduct is wholly in line with traditional fed-

1

eral court practice, as argued in our Petition (at 10-11).

In contrast to the City’s assertion, we never have con-

tended that the Court should take this case to hold that

every municipal wrong must sound in damages. We fully

recognize that there are cases where no damage remedies

are appropriate, and so stated in our Petition (at 10-

11). What we argued in our Petition—and the City

never has answered—is that this case does not fall within

the class of cases where a damage remedy is foreclosed.

No recognized jurisdictional concept deprives the fed-

eral courts of their full remedial powers in a case where

a business has been punished merely because it exercised

federally guaranteed rights, whether the case involves

the Supremacy Clause or not.

8. As stated in our Petition, the Court never has con-

sidered whether Section 1983 relief is appropriate in pre-

emption cases, although three Justices dissented from

denial of certiorari in Private Truck Council of America

v. Quinn, 476 U.S. 1129 (1986), a Commerce Clause case

raising a related issue. This case presents an ideal oppor-

tunity for the Court to address the inter-relationship be-

tween the Supremacy Clause and Section 1983, and to ex-

plain why the federal courts must have authority under

Section 1983 to protect individuals punished for the exer-

cise of statutory rights affirmatively granted by Congress.

4. This recurrent and significant issue should be ad-

dressed by the Court, for reasons more fully developed

in our Petition (at 18-22). Contrary to the City’s argu-

ment, there is a substantial split in the circuits concern-

ing whether a Supremacy or Commerce Clause claim

sounds under Section 1988.“ We called these cases to the

2 The City contends that the Third Circuit case of Kennecott

Corp. v. Smith, 637 F.2d 181 (3rd Cir. 1980), is insubstantial prece-

dent for the proposition that Commerce Clause claims arise under

Section 1983. Three Justices of this Court concluded to the con-

trary in the Private Truck Council case mentioned above. Moreover,

the City also completely fails to discuss established law in the Sixth

5

Court’s attention, however, not to suggest that a split in

the circuits alone justifies the Court’s consideration of

this case, but to point out that the Section 1983 issue

presented by the Petition is recurrent and has produced

divergent results.

5. Lest the Court be misled by the City’s characteriza-

tion of our arguments, we reiterate that we never have

contended that every Supremacy Clause claim (nor every

Commerce Clause claim) necessarily sounds in damages

or is cognizable under Section 1983. We agree with the

Ninth Cireuit's implicit holding that Section 1983 relief

is available in preemption cases only where there is an

actual and direct conflict between state or local action

and federal law. In our Petition, we explicitly noted (at

20, n.21) that where the only Supremacy Clause claim is

allegedly excessive state or local regulation in an area

of pervasive federal interest, no Section 1983 claim

arises. Cf. Chapman v. Houston Welfare Rights Org.,

441 U.S. 600 (1979).

But this case does not involve state or local action in

the face of federal inaction. Here, a lawful business was

punished because of its stance in bargaining. The City

thus attempted to set aside a deliberate affirmative deci-

sion by Congress to endow private parties with statutory

rights. Such conduct plainly creates an actual and direct

conflict with federal law. To hold that Section 1983 relief

is unavailable here is to conclude that such relief is never

available in any case in which the word “pre-emption”

appears or the Supremacy Clause is in some way in-

volved. It is this misapprehension of the fundamental

Cireuit, represented by Martin-Marietta Corp. v. Bendix Corp.,

690 F.2d 558 (6th Cir. 1982), holding that both Supremacy Clause

and Commerce Clause claims sound under Section 1983. See ANR

Pipeline Co. v. Michigan Public Service Commission, 608 F.Supp.

43 (W.D. Mich. 1984) (applying circuit precedent and concluding

that Supremacy and Commerce Clause claims sound under Section

1983).

development of the record.* The issue raised in the

Petition is purely one of law. The courts below did

as

not reject an award of compensatory damages

factually inappropriate; they held such an award beyond

their authority. This legal issue, properly certified below

iow hans inioedeks miles Oat Rennie tities

law whose immediate resolution will advance

the ultimate termination of this litigation, is fully de

veloped and completely presented by the current record.

2. Nothing will be gained by postponing resolution of

this issue pending further proceedings in the lower courts.

All that remains to be resolved below (if the Ninth

i

71

{

i

1

i]

!

1.

aH

Hl

it

i

it

ir

i

1

1

.

— —

duet. Neither will this remedy address the competitive

the largest and oldest cab company

rf

i

{

;

Supreme Court review where federal issue is completely determined,

despite pendency of further state court proceedings, and will survive

and require decision regardless of the outcome of those proceed-

ings); Abood v. Detroit Board of Education, 431 U.S. 209 (1977)

tion”, Gillespie v. United States Steel Corp., 379 U.S. 148, 152

(1964), and this should especially be true where this Court’s review

is not statutorily limited to “final” judgments. See 28 U.S.C.

§ 1254(1) (allowing High Court review of court of appeals ruling

“before or after rendition of judgment or decree”); and see Mills

v. Electric Auto-Lite Company, 396 U.S. 375 (1970) (review granted

on certified legal question although factual issues remained to be

resolved ) .

8

threat to the bargaining process, discussed above and in

our Petition (at 11-13), presented by the decision below.

Unless and until the Ninth Circuit is reversed, neither

|

!

f

absence of a complete and effective remedy means that

management and labor can be held hostage by municipal

governments interested, for political reasons, in avoiding

CONCLUSION

Writ of Certiorari should issue and the decision below

Keating, 465 U.S. 1 (1984) (same); Local No. 438 Construction

and General Laborers’ Union v. Curry, 371 U.S. 542 (1963) (ap

plying same principle to labor field)

JOINT

APPENDIX

3 r

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

JOINT APPENDIX

ZACHARY D. FASMAN . James KENNETH HAHN

nanan i, Coa i City Attorney

AUL, -.ASTINGS, JANOFSKY Jonx F. HAGGERTY

& “aLKER

108 nneeticut Aue. N.W. wire

Wasn.agten, D.C. 20086 2. North Main Street

Phone: (202) 223-9000 Los Angeles, California 90012

Counsel for Petitioner Phone: (213) 485-4533

* Counsel of Record Counsel for Respondent

PETITION FOR CERTIORARI FILED NOVEMBER 16, 1988

CERTIORARI GRANTED FEBRU ARY 21, 1989

No. 88-840

GOLDEN STATE TRANSIT CORPORATION,

2 Petitioner,

City or Los ANA.

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

JOINT APPENDIX

INDEX

Chronological List of Relevant Docket Entries from |

the United States District Court, Central District of

California, No. 81-1519 1

— List of Relevant Docket Entries from

the United States Court of Appeals for the Ninth

Circuit, Nos. 81-5369, 83-5908, 83-6441, 87-6074 3

Complaint, dated March 30, 191 6

Declaration of John Rice, dated March 30, 1981 19

Exhibit I— Application for franchise renewal,

dated March 31, 1980 21

ii

INDEX—Continued

Exhibit 2—Report of Department of Transporta-

tion, dated August 26, 1980

Exhibit 3—Report of Board of Transportation

Commissioners, dated September 4, 19880

Exhibit Recommendation of City Council Trans-

portation and Traffic Committee, dated Novem-

ber 19, 1980

Exhibit 5—Report of Department of Transporta-

tion, dated January 16, 1981

Exhibit 7—Report of Board of Transportation

Commissioners, dated January 26, 1981

Exhibit 8—Report of City Council Transportation

and Traffic Committee, dated February 2, 1981,

with notations illustrating City Council approval

on February 11, 1981

Exhibit 11—Minutes of March 23, 1981, City

Council meeting

Declaration of Eugene Maday, dated March 30, 19881

Exhibit 13—Letter from Hugo Morris to Mayor

Bradley, dated February 5, 1981

Exhibit 14—Letter from Hugo Morris to Council-

man John Ferraro, dated February 5, 1988611

8 2

61

104

112

iii

INDEX—Continued

Order of Judge Andrew Hauk, granting anid

injunction, dated April 13, 1981 —

Defendant's Answer to Complaint, dated April 20,

1981

Decision Granting Preliminary Injunction of Judge An-

drew Hauk in No. CV 81-1519, Golden State Transit

Corp. v. City of Los Angeles, Aug. 17, 1981 (reported

at 520 F. Supp. 191 (C.D. Cal. 1981)

Request for Judicial Notice, dated April 1, 198838

Exhibit G—Sections of Los Angeles City Charter..

Decision of United States Court of Appeals for the

Ninth Circuit in No. 81-5369, Golden State Transit

Corp. v. City of Los Angeles, September 7, 1982 (re-

ported at 686 F.2d 758 (9th Cir. 1982), cert. denied,

EE

Decision of Judge Cynthia Holcomb Hall in No. 81-1519

CH (GX), Golden State Transit Corp. v. City of

Los Angeles, October 18, 1983 (unreported) ..............

Decision of the United States Court of Appeals for the

Ninth Circuit in No. 83-6441, Golden State Transit

Corp. v. City of Los Angeles, February 26, 1985 (re-

ported at 754 F.2d 830 (9th Cir. 1985) )

Defendant’s Memorandum of Points and Authorities in

Opposition to Motion for Summary — dated

r 2

Order of Judge Andrew Hauk Granting Plaintiff's Mo-

tion for Summary Judgment in No. 81-1519-AAH,

Golden State Transit Co. v. 1 Sep-

tember 19, 1986 (unreported)

Defendant's Memorandum of Points and Authorities

Re Remedies, dated October 6, 198

Page

116

128

135

142

143

146

154

160

170

iv

INDEX—Continued

Decision and Order of Judge Andrew Hauk, Denying

Compensatory Relief and Certifying Issues for Ap-

peal in Golden State Transit Corp. v. City of Los

Angeles, No. 81-1519-AAH, April 23, 1987 (unre-

ported) *

NOTE: The appendix filed in the Petition for Certi-

orari contains the following material which

is omitted from this Joint Appendix:

Decision of the United States Court of Appeals for the

Ninth Circuit in Golden State Transit Corp. v. Los

Angeles, reported at 857 F.2d 631 (9th Cir. 1988)

Decision of the Supreme Court of the United States in

Golden State Transit Corp. v. City of Los Angeles,

reported at 475 U.S. 608 (1986)

18a

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. 81-1519

GOLDEN STATE TRANSIT CORPORATION

V.

City oF Los ANGELES

RELEVANT DOCKET ENTRIES

1. Complaint filed March 30, 1981.

2. Declaration of John Rice in Support of Application

for Temporary Restraining Order, with Exhibits, filed

March 30, 1981.

3. Declaration of Eugene Maday in Support of Ap-

plication for Temporary Restraining Order, with Ex-

hibits, filed March 30, 1981.

4. Temporary Restraining Order, with supporting

findings of fact and conclusions of law, entered following

hearing, March 30, 1981.

5. Preliminary Injunction with supporting findings of

fact and conclusions of law, entered following hearing,

on April 13, 1981.

6. Defendant’s Answer to Complaint, filed April 20,

1981.

7. Defendant’s Notice of Appeal of Preliminary In-

junction, filed April 29, 1981.

8. Entry of written opinion of Judge A. Hauk, grant-

ing preliminary injunction (reported at 520 F. Supp. 191

(C.D. Cal. 1981) ), entered August 18, 1981.

9. Second Amended Complaint, raising antitrust claims,

filed March 28, 1983.

10. Request for Judicial Notice, dated April 7, 1983,

with Exhibit.

11. Defendant’s Answer to Second Amended Com-

plaint, filed April 15, 1983.

12. Entry of Order granting Partial Summary Judg-

ment on antitrust claims, with supporting findings of

fact and conclusions of law (reported at 563 F. Supp.

169 (C.D. Cal. 1983) ), entered May 3, 1983.

13. Plaintiff’s Notice of Appeal from Partial Sum-

mary Judgment, filed May 16, 1983.

14. Entry of Order granting Partial Summary Judg-

ment on all other claims, with supporting findings of fact

and conclusions of law, entered October 21, 1983.

15. Plaintiff's Notice of Appeal of Order granting

Partial Summary Judgment on all remaining issues, filed

November 16, 1983.

16. Entry of order granting Plaintiff summary judg-

ment on liability, without decision as to appropriate

remedy, entered September 15, 1986.

17. Entry of decision and order granting injunctive

relief, denying compensatory relief, certifying said deci-

sion and order for immediate appeal under 28 U.S.C.

§ 1292(b), and staying all further proceedings pending

appellate review, entered April 27, 1987.

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

No. 81-5369

No. 83-5903

No. 83-6441

No. 87-6074

GOLDEN STATE TRANSIT CORPORATION

V.

City or Los ANGELES

RELEVANT DOCKET ENTRIES

1. Decision of United States Court of Appeals for the

Ninth Circuit, vacating preliminary injunction (reported

at 686 F.2d 758 (9th Cir. 1982)), entered September 7,

1982. (No. 81-5369)

2. Denial of Petition for a Writ of Certiorari by the

United States Supreme Court (reported at 459 U.S. 1105

(1983) ), entered January 10, 1983. (No. 81-5369)

3. Decision of United States Court of Appeals for

the Ninth Circuit, upholding district court grant of sum-

mary judgment on antitrust cle‘:as (reported at 726

F.2d 1430 (9th Cir. 1984)), entered February 28, 1984.

(No. 83-5903)

4. Decision of United States Court of Appeals for

the Ninth Circuit, denying Petition for Rehearing and

Suggestion for Rehearing En Banc, entered May 14,

1984. (No. 83-5903)

5. Plaintiff's Petition for a Writ of Certiorari on

antitrust issues, filed September 10, 1984 (Supreme

Court No. 84-378). (No. 83-5903)

Court No. 84-1644). (No. 83-6441)

9. Order of United States Supreme Court, granting

Plaintiff’s Petition for a Writ of Certiorari (reported at

472 U.S. 1016), entered June 17, 1985. (No. 83-6441)

10. Decision of United States Supreme Court (re-

ported at 475 U.S. 608 (1986)), entered April 1, 1986.

(Supreme Court No. 84-1644)

11. Denial of Defendant’s Petition for Rehearing En

Banc by United States Supreme Court, entered May 2,

1986. (Supreme Court No. 84-1644)

12. Order of the United States Court of Appeals for

the Ninth Circuit remanding the litigation to the United

States District Court for the Central District of Cali-

fornia (reported at 791 F.2d 1383 (9th Cir. 1986) ), en-

tered June 16, 1986.

13. Order of United States Court of Appeals for the

Ninth Circuit granting Plaintiff's Petition for Permis-

sion to Appeal, entered June 27, 1987.

14. Decision of United States Court of Appeals for

the Ninth Circuit, affirming district court decision and

order on remedies (reported at 857 F.2d 631 (9th Cir.

1988) ), entered September 15, 1988. (No. 87-6074)

57 U.S.L.W. 3534 (1989)), entered February 21

(Supreme Court No. 88-840)

a

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3015 K

FOURTH CAUSE OF ACTION

: (Declaratory Relief)

40. Plaintiff realleges paragraphs 1 through 39 hereof

and incorporate the same herein as though set forth at

:

41. This is a claim for declaratory judgment pursuant

to 28 U.S.C. §§ 2201 for the purpose of determining an

actual, justifiable controversy that exists between Plain-

tiff and Defendant City of Los Angeles as appears here-

inafter.

42. Plaintiff claims and Defendant City of Los

Angeles, upon information and belief, denies that the

aforedescribed action of the city under color of law vio-

lates the following constitutional rights of plaintiff:

a. Its right not to be deprived of property without due

process of law;

b. Its right, to equal protection of the law, all as guar-

anteed and secured to it by the Constitution and laws of

the United States; and

e. Its right to engage in collective bargaining with its

employees without local political interference.

43. Plaintiff is entitled to a speedy hearing of this

cause of action and is entitled to have it advanced on a

calendar for hearing.

WHEREFORE, Plaintiff prays for relief from Defend-

ants as follows:

til aa,

|

8. The sum of Ten Million Dollars ($10,000,000) in

general damages.

4. The sum of Ten Million Dollars ($10,000,000) in

punitive and exemplary damages.

5. Costs of suit and reasonable attorneys fees.

6. For such other and further relief as the Court

deems just and proper.

DATED: March 30, 1981.

s Michael R. Mitchell

MICHAEL R. MITCHELL

/s/ John B. Rice

JOHN B. Rice

Attorneys for Plaintiff

No. 81-1519 AAH Gx

Crry or Los ANGELES, a municipal corporation

DEMAND FOR JURY TRIAL

Plaintiff herein demands trial by jury of all issues of

fact properly triable thereby.

/s/ Michael R. Mitchell

MICHAEL R. MITCHELL

/s/ John B. Rice

JOHN B. RIcE

Attorneys for Plaintiff

EXHIBIT 1

APPLICATION FOR FRANCHISE RENEWAL

CITY COUNCIL DATE: Mar. 31, 1980

CITY OF LOS ANGELES

Room 395, CITY HALL

200 North Spring Street

Los Angeles, California 90012

Golden State Transit, Inc. hereby requests a renewal of

its taxicab franchise(s) granted by Ordinance(s) No.

149,825 and 146,496 which expire on October 29, 1980.

The $200 application fee (certified check No. 04178),

made payable to the City Treasurer, is enclosed as

required by franchise procedure Ordinance No. 58,200.

/s/ Richard M. Burlingame,

Vice President

Golden State Transit Corp.

!

4

;

|

REPORT

DEPARTMENT OF TRANSPORTATION

2

Board of Transportation

Wednesday, September 8, 1980

REFERENCE: Council Files 80-1717, 80-2070, 80-1643,

80-1485, 80-1709, 80-1642, 80-1358,

77-1167, 80.1608, 80-1356, 80-1787,

b

I

4

High Land Co.

Red and White Cab Co. 146,499

Yellow Cab Co. of Culver City, Inc. 151,570

James D. Mitchell 153,331

Wilmington Cab Co. 146,501

149,699

Los Angeles City Cab Co., Inc. 149,808 80-1365

n 3

al

- 725

is

| lig

: if

f la

1

2 1 1411

Hdl

45

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211

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28

EXHIBIT 4

RECOMMENDATION OF CITY COUNCIL

TRANSPORTATION AND TRAFFIC COMMITTEE

COMMUNICATION

To: The Council

From: Pat Russell, Chairwomar.

Transportation and

Traffic Committee

80-4592 80-1485 77-1167 80-2101

80-1717 80-1709 80-1608 80-1246

80-2070 80-1642 80-1356 80-1365

80-1643 80-1358 80-1787

RECOMMENDATION

In order to provide for a further temporary extension

of all 13 existing taxicab franchises due to expire on

12-31-80, as there is insufficient time to properly evaluate

the Board of Transportation recommendations adopted

on 9-3-80, and its “Staff Taxi Industry Study” and the

Los Angeles County Interim Taxicab Industry Report,

and to conduct a public hearing including receiving com-

ments from the taxi industry, the Chairwoman of your

Committee RECOMMENDS (the other two members

being absent from the meeting at which this matter was

considered, notwithstanding the recommendation of the

Board of Transportation on 9-3-80 for a temporary ex-

tension only to 12-31-80 and its lack of quorum on No-

vember 13, 1980 to consider a three-month extension to

3-31-81, as follows:

1. That the folowing accompanying 13 ordinances

which will “temporarily” extend all of the follow-

ing 13 existing taxicab franchises from 12-31-80

to 3-31-81, with no changes in terms and condi-

tions, approved as to form and legality by the City

e 1 — i * „„ *

* c 9 . 1

E

Attorney, BE PLACED UPON THEIR PASSAGE

AND TRANSMITTED FORTHWITH TO THE

MAYOR:

(Original Or As Assigned)

Franchise Ordinance No. Council

Company Area File No.

Monarch Transportation, Inc. 149,002 A 80-1717

Southern California Transit Co. 146,498 A 80-2070

Lupe, Inc. 153,951 B,D 80-1643

Golden State Transit Corp. 149,825 B. C. D 80-1485

The F. Michael Crawford Corp. 151,680 B-1 80-1709

Celebrity Private Car Service 149,429 B-1 80-1642

A & W Cab Company, Inc. 153,851 C 80-1358

High Land Transit Co. 149,802 C-1 77-1167

80-1608

Red and White Cab Co. 146,499 C-2 80-1356

Yellow Cab Co. of Culver City, Inc. 151,570 D 80-1787

James D. Mitchell 153,331 D 80-2101

Wilmington Cab Co. 146,501 E 80-1246

149,699

Los Angeles City Cab Co., Inc. 149,808 B-2 80-1365

2. That the subject files be referred back to the Trans-

portation and Traffic Committee for submittal of

its recommendations regarding the renewal of exist-

ing 13 taxicab franchises and other recommenda-

tions of the Board of Transportation.

SUMMARY

The Comprehensive Taxicab Study, as approved by the

Board on September 3, 1980, recommends extensive up-

grading of franchise terms and conditions as the fran-

chises are renewed.

Your Committee has been advised that the franchises

of all thirteen (13) existing taxicab companies in the

City of Los Angeles wil] expire on 12-31-80, having been

Hi tia

312

l

.

1 Hs

Hi

panies.

:

|

of ownership be subject to Council ap-

REPORT

DEPARTMENT OF TRANSPORTATION

E18

January 16, 1981

To: Board of Transportation Commissioners

Thursday, January 22, 1981

Subject: MODIFICATION TO THE PROPOSED RENEWAL

TAXICAB FRANCHISES

RECOMMENDATIONS

I. That your Board approve the following modifications

to the first three of the Board’s September 3, 1980

recommendations to Council on Renewal of Existing

Taxicab Franchises and submit these revisions for

Council action.

A. Modified Recommendation No. 1

That upon approval of the Mayor and Council

by Ordinance a multi-year replacement taxicab

franchise, that will expire on March 31, 1985,

be granted to:

LUPE, INC.

GOLDEN STATE TRANSIT CO.

CELEBRITY PRIVATE CAR SERVICE

WILMINGTON CAB COMPANY

MONARCH TRANSPORTATION, INC.

THE F. MICHAEL CRAWFORD CORP.

B. Modified Recommendation No. 2

That upon approval of the Mayor and Council

by Ordinance a one year franchise, which will

expire on March 31, 1982 with a provision for

renewal to March 31, 1985 upon affirmative

findings by the Board of continuous compliance

H

it

4

2

F f

2

3

:

—

">

53

2

.

8

:

5

:

:

2

:

.

:

3. Revise Section 4.2(e) to read as follows:

z

4.2(e) All taxicabs operated on behalf of

shall be under the

the Grantee. All

leasing contracting to

terminated

i

i

0

ia

11

34

employee arrangement. Beginning on

July 2, 1981 Grantee shall not be per-

mitted to provide taxi service through

a contracting or leasing type opera-

tion with a driver-owner, but only by

35

EXHIBIT 7

CITY OF LOS ANGELES

INTER-DEPARTMENTAL CORRESPONDENCE

the operation of its taxicabs by em- E14

ployees and officers of the grantee. Date: January 26, 1981

Any such authorization which may To: Councilwoman Pat Russell, Chairwoman,

have been granted to franchisee, or Transportation and Traffic Committee

any predecessor in interest of fran- Attention C. B. Pruner, City Clerk’s Office,

chisee, is accordingly hereby revoked. 395 City Hall

B. Modifications to Probationary Franchise From: Board of Transportation Commissioners,

1. Redesignate as a one year franchise. 1200 City Hall

2. Revise the second and third paragraphs of Subject: RENEWAL OF EXISTING TAXICAB FRANCHISES

Section 2.2.

Second paragraph revised as follows:

This franchise shall expire March 31, 1982.

The franchise will then only be renewed at

the discretion of the Council, upon its adop-

tion of the necessary ordinance, and provided

the Grantee has demonstrated, to the satis-

faction of the Board, continuous compliance

with all franchise terms and conditions and

specifically the following:

(a) Payment of franchise fees; (b) Compli-

ance with all rules regarding leasing/con-

tracting operations; (e) Furnish waybills

and dispatch records; (d) Maintain mini-

mum number of vehicles required by fran-

chise; and (e) Compliance with Affirmative

Action provisions of franchise.

Third paragraph be eliminated.

Council Files 80-1717, 80-2070, 80-1643, 80-1485, 80-1709

80-1642, 80-1358, 77-1167, 80-1608, 80-1356, 80-1787,

80-2101, 80-1246, 80-1365

The franchises of all thirteen (13) existing taxicab com-

panies in the City expired on October 29, 1980. They

were subsequently extended, by Council actions, to March

31, 1981 in order to allow sufficient time for the Council

to review the Board’s September 3, 1980 recommenda-

tions on replacement franchises.

The Transportation and Traffic Committee at their

meeting of December 10, 1980 considered the renewal of

the thirteen franchises including the matter of leasing to

driver-owners by franchised taxicab companies. The Com-

mittee recommended that the matter of leasing to driver-

owners by franchised taxicab companies be referred back

to the Board to request that the Board consider alterna-

tives for the accommodation of driver-owners whose

authority to lease would be discontinued by the terms of

the proposed franchises. The Board was also requested

to include any necessary modifications to the proposed

franchises.

36 37

At its regular meeting on January 22, 1981, the Board Section read substantially in accordance with the ac-

of Transportation Commissioners approved certain revi- companying draft.

sions to their September 3, 1980 recommendations to In additi th ;

Council on this matter. The revisions are discussed in ad — — * ie above recommendations, the Board

detail on the attached Board approved report. — — e following resolution by Commissioner Michael

The following represents the Board's original recom- 7 *

mendations as revised and is submitted for your action. I move that all existing authorities for leasing of

1. That a multi-year replacement taxicab franchise, that taxicabs by franchised companies to driver-owners,

f ; , , granted by the Board pursuant to 71.15 of the Mu-

will expire on March 31, 1985, in accordance with the * . 8 0 u

attached draft be granted to: nicipal Code, be rescinded on a phased basis, that the

companies be instructed to terminate the driver-owner

LUPE, INC. relationship upon completion of their one-year con-

GOLDEN STATE TRANSIT Co. tract and in no event later than July 1, 1981, and that

CELEBRITY PRIVATE CAR SERVICE | the City Council be advised of this action of the

WILMINGTON CAB COMPANY Board.”

pe Bente Ane age Reg | This matter is being returned for your action.

2. That a one-year franchise, which will expire March

31, 1982, with a provision that it will then only be /s/ Joy Ventura

renewed at the discretion of the Council, upon its JOY VENTURA

adoption of the necessary ordinance and provided the Acting Secretary

Grantee has demonstrated to the satisfaction of the Board of Transportation

Board continuous compliance with all franchise terms Commissioners

— and conditions, be granted to the following: IR: jev 9

A & WCABCO. Attachments

HIGH LAND TRANSIT co.

YELLOW CAB COMPANY OF CULVER ec: All Franchised Operators

CITY, INC. |

JAMES D. MITCHELL

SOUTHERN CALIFORNIA TRANSIT co.

RED AND WHITE CAB CO.

LOS ANGELES CITY CAB COMPANY, INC.

3. That any change in ownership of the grantee shall be

subject to Council approval.

4. That the Council amend Section 71.05(b) of the Los

Angeles Municipal Code to provide for an increase in

vehicle permit fees for taxicabs and that the revised

38

EXHIBIT 8

TO THE COUNCIL OF THE

CITY OF LOS ANGELES

77-1167, 80-1246, 80-1356, 80-1358, 80-1365, 80-1485,

80-1608, 80-1642, 80-1643, 80-1709, 80-1717, 80-1787,

80-2101, 80-2070, 80-4592, 77-1337, 77-5255, 76-105 &

Your TRANSPORTATION AND TRAFFIC Commit-

tee reports as follows:

RECOMMENDATION

In order to provide for the replacement of all thirteen

existing taxicab franchises due to expire on March 31,

1981 and to provide for an increase in vehicle permit fees

for taxicabs, we RECOMMEND, as recommended by the

Board of Transportation Commissioners, as follows:

1. That the accompanying six ordinances, granting a

multi-year replacement taxicab franchise, that will

expire on March 31, 1985, for the following six

existing taxicab franchises, approved as to form

and legality by the City Attorney, BE PLACED

UPON THEIR PASSAGE:

(Original Or As Assigned)

Franchise Ordinance No.

Council

Company Area File No.

h Transportation, Inc. 149,002 A 80-1717

3 a 153,951 B,C 80-1643

*Golden State Transit Corp. 140,825 B,C,D 80-1485

The F. Michael Crawford Corp. 151,680 B-1 80-1709

Celebrity Private Car Service 149,429 B-1 80-1642

ngton 6

Wilmi Cab Co. 146,501 E 80-124

8 149,699

* Deleted and Continued to Feb. 17, 1981 [This line struck

through in original document]

2. That the accompanying seven ordinances, granting

a one-year franchise, which will expire March 31,

1982, with a provision that it will then only be

renewed at the discretion of the Council, upon its

adoption of the necessary ordinance and provided

the Grantee has demonstrated to the satisfaction of

the Board continuous compliance with all franchise

terms and conditions, for the following seven exist-

ing taxicab franchises, approved as to form and

legality by the City Attorney, BE PLACED UPON

THEIR PASSAGE:

(Original Or As Assigned)

Franchise Ordinance No.

Council

Company Area File No.

Southern California Transit Co. 146,498 A 80-2070

**A & W Cab Company, Inc. 153,851 C 80-1358

High Land Transit Co. 149,802 C-1 77-1167

80-1608

Red and White Cab Co. 146,499 C-2 80-1356

Yellow Cab Co. of Culver City, Inc. 151,570 D 80-1787

James D. Mitchell 153,331 D 80-2101

Los Angeles City Cab Co., Inc. 149,803 B-2 80-1365

** Deleted and Referred back to Board of Transportation Com-

missioners, Substitute Ordinance Adopted extending existing

franchise to May 31, 1981. [This line struck through in

original document]

8. That the Council be advised that all the franchise

ordinances include the following provisions:

a. That any change in ownership of the grantee

shall be subject to Council approval.

b. That all taxicabs operated on behalf of the fran-

chise shal] be under direct control of the grantee,

requiring all present leasing/contracting to

driver owners to be terminated immediately

upon completion of the lease/contract but no

40

later than July 1, 1981. Grantee shall offer to

employ all such affected drivers under an em-

ployer-employee arrangement. Thereafter, the

operation of the taxicabs will be only by em-

ployees and officers of the grantee.

e. That all taxicab operators participate in the

City-sponsored transportation coupon (user-side

subsidy) program.

d. Grantee is to make a base franchise payment of

$41.67 per month for each sealed taxicab (equals

$500 per year) with an incremental increase of

up to doubling of the payment based on the level

of services. This is similar to the fees for the

two associations in Recommendation No. 4.

4. That the accompanying ordinance amending Section

71.05(b) of the Los Angeles Administrative Code to

provide for an increase in vehicle permit fees for

taxicabs of the existing associations from $250 an-

nually to $500 per year, with an incremental in-

crease of up to $500 per year based on the level

of service, approved as to form and legality by

the City Attorney, BE PLACED UPON ITS PAS-

SAGE.

SUMMARY

The franchise of all thirteen existing taxicab companies

in the City expired on October 29, 1980. They were sub-

sequently extended, by Council actions, to March 31, 1981

in order to allow sufficient time for the Council to review

the Board’s recommendations on the matter.

The Comprehensive Taxicab Study, as approved by the

Board on September 3, 1980, recommends extensive up-

grading of franchise terms and conditions as the fran-

chises are renewed.

At a special meeting held on September 3, 1980, the

Board in summary approved the following recommenda-

tions: ~

—

41

1. Five-year replacement taxicab franchises for five

companies.

2. A four-month probationary franchise with the pro-

vision for extension to five years on affirmative

findings of compliance by the Board for seven com-

panies.

3. Denial of application for renewal for one company.

4. Changes of ownership be subject to Council ap-

proval.

5. That Section 71.05(b) of the Los Angeles Municipal

Code be amended to provide for an nerease in

vehicle permit fees for associated taxicabs.

The Transportation and Traffic Committee at its meeting

on December 10, 1980, in considering the recommenda-

tions of the Board for renewal of the thirteen franchises

including the matter of leasing to driver-owners by fran-

chise taxicab companies, submitted the franchises back to

the Board for any necessary modifications and considera-

tion of alternatives for the accommodation of driver-

owners whose authority to lease would be discontinued by

the terms of the proposed franchises.

The Department reviewed all of the thirteen companies

and updated the status of each in regard to their eligibil-

ity for a multi-year franchise. In lieu of the original rec-

ommendations, the Board recommended that a multi-year

replacement taxicab franchise, to expire on March 31,

1985, be granted to six franchisees.

The Department also recommended that a one-year fran-

chise, to expire on March 31, 1982, with a provision for

renewal to March 31, 1985 upon affirmative findings by

the Board of continuous compliance with all terms and

conditions thereof and approval by ordinance, be granted

to seven companies.

The Board not only recomended substantial changes in

the types of franchises to be provided but also recom-

42

mended certain changes as to the status of the individual

franchise companies under the full term versus provi-

sional franchise.

The six companies listed in Recommendation No. 1 (full

term) are in compliance with all terms and conditions of

their franchise including these five specific conditions:

(a) Payment of franchise fees; (b) Compliance with all

rules regarding leasing—cortracting operations; (c) Fur-

nish waybills and dispatch records; (d) Maintain mini-

mum number of vehicles required by franchise; and

(e) Compliance with Affirmative Action provisions of

franchise.

Monarch Transportation, Inc. and The F. Michael Craw-

ford Corp. were added to the 4-year list while Red and

White Cab Company is now recommended for a one-year

franchise due to possible violations of the rules regarding

leasing/contracting operations with driver-owners.

Under Recommendation No. 2, A&W Cab Company, High

Land Transit Company, Yellow Cab Company of Culver

City, Inc., Southern California Transit Company, and

possibly James D. Mitchell are also in violation of rules

regarding leasing/contracting with driver-owners. South-

ern California Transit Company does not have its

required 30 vehicles in service yet.

The Board originally recommended that Los Angeles City

Cab Co., Inc. lease not be renewed based upon numerous

violations of the franchise terms and conditions of the

franchise and Department: directives as enumerated in

the Department staff report. In the past four months,

however, City Cab has been actively involved in bringing

its operation in compliance with the franchise terms and

conditions and Department directives. Insurance prob-

lems have been resulved and the Company has eliminated

all but three of its illegal driver-owners and is in the

process of resolving this matter The Department has

been receiving requested records and documents from the

43

Company. The Department therefore now recommends

that this franchise be included under Recommendation

No. 2 for a provisional one-year franchise.

It is noted that the one-year provisional franchise will

allow the Department an opportunity to periodically re-

view compliance with all franchise terms and conditions

and develop the proper recommendation for extension to

March 31, 1985. It will provide a period of time in which

the companies must phase out their driver-owners and the

Department can monitor the phase-out to determine com-

pliance by July 1, 1981. 4

The proposed terms of the new franchises requiring the

elimination of the franchise company’s lease authority

with driver-owners will create a problem that is difficult

to resolve. The Department has explored this problem for

a possible solution that would be acceptable to the driver-

owners, companies and City.

The Department estimates that a total of at least 149

driver-owners, including 60 that are unauthorized, would

be affected by the elimination of the authority for leases

and contracts between franchise con.panies and driver-

owners. The Department studied several alternatives for

absorption of the driver-owners, e.g. driver-owners to be

absorbed by the two existing independent associations;

permit driver-owners to form a new independent associa-

tion; or driver-owner to be*sme an employee. It was con-

cluded that the independent associations’ options were not

viable and that the most feasible solution to the problem

is to combine a phase-out of driver-owners (as contracts

run out) with a requirement that each company offer to

hire driver-owners us employees. The leasing and con-

tracting to driver-owners is to be terminated as the agree-

ments lapse and in no event later than July 1, 1981. It

was noted that many of the present agreements were

signed in early 1980 for a one-year period with option

44

to renew, conditioned upon continued sanction by the City

of Los Angeles.

The former driver-owners would have the option of being

hired as commission drivers or as fixed fee employees

(pass-through) drivers. In either case they would be

employees of the company, utilizing company taxis, and

be provided, pursuant to Federal and State statutes, full

social benefits, i.e., Social Security, Unemployment Insur-

ance and Workers’ Compensation.

There are various alternatives possible insofar as the

current driver-owners who own their own taxicabs. They

could sell their vehicle to the company through a contract

that would allow the driver-owner an opportunity to

recover his investment in the vehicle and provide a credit

on his initial “sign-up” fee; it could be a direct sale of the

vehicle to the taxicab company; and there could be an

arangement where a taxi could be sold to a leasing com-

pany for an interest in the company and subsequently

leased, as suggested by A & W Cab Company or High

Land Transit, and become part of the company’s taxi

fleet.

Converting the driver-owner to an employee and absorb-

ing his vehicle into the company’s com mission fleet will

provide the driver with the protection of social benefits,

which the Board of Transportation Commissioners has

vigorously advocated, and at the same time provide a

posi‘ive control of the driver and vehicle.

On November 20, 1980, the Board of Transportation

Commissiez.crs approved the Department’s recommenda-

tion to include in the new taxicab franchises a require-

ment that all operators participate in the City-sponsored

transportation coupon (user-side subsidy) program.

Your Committee conducted a public hearing with regard

to the subject renewal of taxicab franchises, with no ap-

ü—ä—ñZ—ä — — —..ʒfß — —

45

parent dissent by the involved franchisees. There was no

response from the representatives of the (A&W) owner-

driver association. The representatives of the independent

associations suggested that the franchise operators should

not be allowed to lease at all, whether employees or not,

and they felt that there was favoritism in the provisions

of the franchises toward the franchise companies in rela-

tionship to the desires of the associations. The Teamsters

Union, which represents the empleyees of the Yellow

Cab Company, indicated support for the franchise

provisions.

The franchise renewals provide a fixed franchise fee of

$41.67 per month ($500 per year) with an incremental

increase of up to doubling of the payment, based cn the

level of service, similar in impact to the new fees being

recomended for the two associations. The grantees pre-

viously were paying 1% of the total gross receipts from

their taxicab operations, which is estimated at $50,000 of

receipts per year per cab, with up to an incremental addi-

tional 1% based on level of service. This new payment

should approximate the receipts from the old method but

will be easier to administer.

The Yellow Cab Company indicated that it should not

have to pay fees for taxicabs that are “out of service.”

The Department indicated that usually these taxicabs are

out of service only temporarily and that any permanently

disabled taxicabs could be administratively credited.

The two associations fee] that their vehicle permit fees

should not be increased from $250 annually to $500

annually, with a concurrent doubling of the incremental

increase based on the level of service. The associations

feel that they should not have to pay the $500 in one

lump sum and should be able to pay in monthly install-

ments similar to the payments by the francisees for their

sealed taxicabs. The Department indicated that it would

46

review this request and the feasibility of collecting the

fees from the associations rather than individual taxicab

owners.

Respectfully submitted,

TRANSPORTATION AND TRAFFIC

COMMITTEE

CBP:jd

2-2-81 |

[Motion adopted to approve Comte. Rec. Feb. 11, 1981—

Los Angeles City Council as amended to the Mayor forth-

with—* Ord. relating to Golden State Transit Corp. de-

leted and continued to Feb. 17, 1981]

47

EXHIBIT 11

MINUTES OF MARCH 23, 1981,

CITY COUNCIL MEETING

March 23, 1981

Council File No. 80-1485

Item No. 14

At this point in the proceedings, Mrs. Russell was rec-

ognized in keeping with Item No. 14 on this day’s Coun-

cil Calendar.

Mrs. Russell presented the following Motion and moved,

seconded by Mr. Farrell, its adoption:

MOTION

WHEREAS, the taxicab franchise granted to Golden

State Transit Corporation, dba Yellow Cab Company, to

operate upon certain streets in the City of Los Angeles,

is presently due to expire March 31, 1981; and

WHEREAS, the City Council did previously act to

extend such franchise to April 30, 1981, provided it was

determined, on or before March 27, 1981, that it is in the

best interest of the City to allow for such extension; and

WHEREAS, there are presently uncertainties relating

to such franchise which will require investigation by the

Department of Transportation ; and

WHEREAS, it would not be in the best interest of the

City to allow for such franchise to expire March 31, 1981;

NOW THEREFORE, it is hereby found and deter-

mined that it is in the best interest of the City to allow

for such extension to April 30, 1981.

Moved by /s/ Pat Russell

PaT RUSSELL

Councilman

Sixth District

Seconded By /s/ Robert Farrell

Mar. 23, 198!—Failed of Adoption]

48

The subject, as indicated on the Calendar, was consid-

eration of possible findings required under Ordinance No.

154,931 to extend the terms of the taxicab franchise

(Golden State Transit Corporation dba Yellow Cab Com-

pany), from March 31, 1981 to April 30, 1981.

Mrs. Russell moved, seconded by Mr. Farrell, that a

Public Hearing of ten minutes duration be authorized to

hear from those persons in the audience that wished to

express their views.

The motion for Public Hearing was approved by unani-

mous vote.

The Council then heard from the following persons:

Eugene Maday; Hugo Morris, Joint Council of Teamsters

No. 42 and Local 572; David I. Shapiro; and Steve

Robertson, Los Angeles Federation of Labor.

While each ofthe foregoing speakers expressed their

own views, stated during the commentary were concerns

by Mr. Maday that the City was interveaing in a labor

dispute (by the actions being considered) involving the

company and the Teamsters. The other speakers indi-

cated that no great taxicab shortage had taken place dur-

ing the period of time the franchise holder taxicab was

out of operation. It was also the labor organization

speaker’s contention that the employer (Yellow Cab) was

bargaining “in bad faith” with the taxicab drivers em-

ployed by that company, thus to grant an extension of

time and/or grant a further franchise to the company

would not be in the drivers interests.

After the foregoing speakers had expressed their views,

and as there were no other persons in the audience that

wished to address the Council on the subject, the Public

Hearing was closed.

At this point in the proceedings the following persons

were assembled at the table within the Council semi-circle

to answer questions and/or make statements if called

49

upon to do so: Donald Howery, General Manager, De-

partment of Transportation; Neil Clark, Principal Trans-

portation Engineer, Department of Transportation; and

John Haggerty, Assistant City Attorney, Office of the

City Attorney.

The measure was debated at length and during the

commentary Mr. John Haggerty, representing the City

Attorney’s Office, advised the Council that the findings

referred to in Mrs. Russell’s Motion would have to be

approved by the Council by March 27, 1981 if the exten-

sion indicated in the Motion was to be authorized. If the

extension was granted, an ordinance granting a new taxi-

cab franchise to Yellow Cab Company would have to be

approved by the Council, signed by the Mayor and pub-

lished on or before March 31, 1981, if, in fact, the indi-

cated company was to retain the franchise. The franchise

could not be authorized at a later date, the Council was

advised, without the usual bidding procedure.

During the discussion, various Council members were

recognized and expressed their views.

Following all commentary, Mrs. Russell’s Motion failed

of adoption by the following vote: Roll — (2-10)

The Chair advised that the Motion had failed and

thereafter recognized Mr. Gibson. Mr. Gibson indicated

that it had been his intention to vote “No” on the Motion.

It was agreed that the record would show Mr. Gibson’s

intention, and theafter the Clerk was instructed to pro-

ceed with the next order of business.

50

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

No. 81-1519 AAH (Gx)

GOLDEN STATE TRANSIT CORPORATION,

a California corporation, doing business as

Yellow Cab of Los Angeles,

Plaintiff.

vs.

CiTy OF Los ANGELES, a municipal corporation,

Defendant.

DECLARATION OF EUGENE MADAY IN SUPPORT OF

APPLICATION FOR TEMPORARY

RESTRAINING ORDER

I, the undersigned, declare:

1. My name is Eugene Maday. I am the president and

controlling shareholder of plaintiff Golden State Transit

Corporation, d/b/a/ Yellow Cab of Los Angeles (“Yellow

Cab” hereafter). If called to testify as a witness, I would

testify completely to the following facts based upon my

personal knowledge.

BACKGROUND OF PLAINTIFF’S PURCHASE OF

YELLOW CAB

2. In or about 1977, Yellow Cab’s Los Angeles’ pre-

decessor was affiliated with the Westgate-California group

of companies and was in bankruptcy or receivership. The

bankruptcy receiver, Robert N. Mateer (“Mateer”) was

seeking a purchaser for the bankrupt’s assets, including

the Los Angeles City taxi franchise. At that time, the

bankrupt was not operating pursuant to its franchise

51

and was unionized. The bankrupt’s drivers were union-

ized through Teamster’s Local No. 670 and were repre-

sented by Hugo Morris (“Morris”) who also represented

Joint Council of Teamsters No. 42. Mateer and Morris

approached me and urged me to purchase the bankrupt’s

assets, including the franchise. Transfer of the franchise

was required to be approved by the Los Angeles City

Council (“City Council’’).

3. Richard Burlingame, an employee of the receiver

and former employee of the bankrupt told me that getting

the franchise renewed had always been automatic and

that no Los Angeles taxicab franchise had failed to be

renewed.

4. On or about April 1, 1977, Mateer told me there

would be no problem if I bought the Company in obtain-

ing the transfer of the existing franchise and even less

problem in getting it renewed. I caused Golden State

Transit Corporation to be formed to effectuate the

purchase.

5. On May 17, 1977, plaintiff paid the receiver ap-

proximately $550,000 for the assets, including the right

to use the name “Yellow Cab of Los Angeles” and, subject

to City Council approval, all rights under the existing

franchise.

6. On or about March 23, 1981, the president of Los

Angeles City Council characterized plaintiff’s purchase of

the old company, after several months of no taxicab serv-

ice in Los Angeles as bailing “the city out, not only with

his generosity, but with the aid and help of the [team-

sters] union.” A true and correct transcript of the City

Council hearing of March 23, 1981 is attached hereto,

marked Exhibit 15 and incorporated reference.

7. In early May, 1977, Plaintiff applied for City Coun-

cil approval of the franchise transfer. At that time,

Robert W. Russell was General Manager of the City of

Los Angeles’ Department of Public Utilities (now the

52

Department of Transportation) responsible for investigat-

ing proposed taxicab franchise transferees. About the

end of May, 1977, Mr. Russell visited my offices. He told

me personally that obtaining transfer of the Yellow Cab

franchise would “take a little work,” but that renewals

“had always been automatic.”

8. In July, 1977, the City Council approved transfer

of the franchise to plaintiff and the transfer was affected.

The transferred franchise was to expire October 29, 1980.

9. Thereupon, Yellow Cab undertook to and did oper-

ate pursuant to the franchise.

10. Upon plaintiff’s formation, I paid $250,000 to

plaintiff for all of its 25,000 shares of outstanding stock.

I remain sole owner of all of plaintiff’s outstanding stock.

Since then, I have paid $736,325 additional capital into

plaintiff and have personally advanced to plaintiff an

additional $685,301. I am sole shareholder of Leisure

Industries, Inc. which has loaned to plaintiff $427,172.

11. Since obtaining the franchise, plaintiff has pur-

chased more than three million dollars worth of vehicles

to improve and upgrade the quality of its fleet. Plaintiff

is the largest taxicab operator in the City of Los Angeles

with approximately 400 vehicles.

UNION AGREEMENT

12. Upon obtaining the franchise, plaintiff operated

pursuant to a collective -bargaining agreement with its

Teamster drivers. The agreement expired in October.

1980. Plaintiff continued to operate pursuant to interim

agreements with the Teamsters, but the parties continue

to dispute regarding wages and benefits. This dispute has

been and is subject to mediation by the Federal Mediation

and Reconciliation Service. Plaintiff has been and con-

tinues to act in good faith to resolve the dispute. On

February 11, 1981, plaintiff’s drivers went on and remain

on strike.

53

FRANCHISE RENEWAL

13. More than a year ago, on March 31, 1980, in

anticipation of the October, 1980 franchise expiration

date, Yellow Cab made written application to the City

for renewal of its franchise and paid its $200 application

fee (Exhibit 1 to Declaration of John B. Rice filed here-

with). On April 1, 1980, the application was referred to

the City’s Board of Transportation Commissioners

(“Board”) for report. At that time, all thirteen (13)

taxicab franchises in the City were also due to expire in

October, 1980, and all other franchises also applied for

renewals.

14. The Department of Transportation requested and

on July 14, 1980 received an extension until September

15, 1980 to report on the thirteen franchise applications.

15. Meanwhile, the City (by the staff of its Depart-

ment of Transportation) was engaged in a comprehensive

taxicab study which culminated in a Report dated Au-

gust 14, 1980 (Exhibit 12 attached hereto) which rec-

ommended that Yellow Cab and ten other franchisees be

granted six month probationary franchises to be extended

to five year franchisees under certain conditions. Yellow

Cab was then and is now in

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Record and brief — Golden State Transit Corp. v. Los Angeles · 493 U.S. 103 | Frix