Petition for Writ of Certiorari — City of Cincinnati v. Miller

)

No. 01-_ 1 O05 4 JAN 11 opp

OFFICE OF

In The OF THE CLERK

Supreme Court of the United States

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LOS ANGELES COUNTY METROPOLITAN

_ TRANSPORTATION AUTHORITY; FRANKLIN E. WHITE,

MTA Chief Executive Officer in his Individual and Official

Capacities; JOSEPH NMI DREW, MTA Acting Chief Executive

Officer in his Individual and Official Capacities,

Petitioners, .

vs.

LABOR/COMMUNITY STRATEGY CENTER; BUS RIDERS

UNION; SOUTHERN CHRISTIAN LEADERSHIP

CONFERENCE OF GREATER LOS ANGELES COUNTY;

KOREAN IMMIGRANT WORKERS ADVOCATES;

MARIA GUARDADO; RICARDO ZELADA; NOEMI ZELADA;

PEARL DANIELS; HENRY FREDERICK RAMEY, JR.;

O. HOWARD WATTS; WILLIAM TUT HAYES; VICTOR DIBAS,

Respondents.

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On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

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PETITION FOR A WRIT OF CERTIORARI

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OFFICE OF THE CouNTY COUNSEL CHRISTENSEN, MILLER, FINK,

Lioyrp W. PELLMAN Jacoss, Graser, Wer & ©

STEVEN J. CARNEVALE SHapiro, LLP

One Gateway Plaza Patricia L. GLASER

Los Angeles, California 90012 James S. SCHREIER

Telephone: (213) 922-2000 2121 Avenue of the Stars

M & F als 18th Floor a.

S mings A H meen Los Angeles, California 90067

eS Telephone: (310) 553-3000

Counsel of Record

555 West Fifth Street, Suite 3500

Los Angeles, California 90013-1024

Telephone: (213) 892-5200

Counsel for Petitioners

Oe Se A eERCT ad Sa "5

i

QUESTIONS PRESENTED

Petitioners are the Los Angeles County Metropolitan

Transportation Authority (“MTA”) and the MTA’s named

executive officers. The MTA is California’s agency stat-

utorily charged with planning, constructing, financing

and operating Los Angeles County’s public transporta-

tion systems, ¢.g., freeways, highways, buses, subways

and trains. Cal. Pub. Util. Code §§ 130050.2, 130300,

130301. This case arises from proceedings initiated by

respondents to enforce a consent decree (“Decree”) fol-

lowing settlement of their civil rights action. No constitu-

tional or statutory violation was ever conceded or

adjudicated.

1. Did the Ninth Circuit disobey United States v. ITT

Continental Baking Co., 420 U.S. 223, 95 S. Ct. 926, 43

L. Ed. 2d 148 (1975), and United States v. Armour & Co.,

402 U.S. 673, 91 S. Ct. 1752, 29 L. Ed. 2d 256 (1971), by

construing the Decree solely as a judgment rather than as

a contract for enforcement purposes thereby creating con-

flicts with the other Circuits?

2. Did the Ninth Circuit disobey this Court’s limita-

tions on federal courts’ power to intrude into the discre-

tionary authority committed to state agencies by ordering

the MTA to buy hundreds of buses that the Decree did

not require and that the MTA had insufficient funding to

buy and to operate while simultaneously meeting its

statutory obligations to users of its transportation sys-

tems other than bus riders?

LIST OF PARTIES

All parties appear in the caption of the case on the

cover page.

iii

TABLE OF CONTENTS

Page

CAPE UIIN PIRMOUIN EOD 6 occ ccccccccccccccceveces i

a Eo iss ow hia Wale 0s bs ii

EE occas sb ccapseessnevecicess iii

pr 8 Bo Sty yo cy. ES ee ce iv

EET SR OS ee ee aa 1

EEE ee ne ee eae 1

STATUTORY PROVISIONS INVOLVED............. 1

DEAE EETE GOP THEE CASE, ..c ce cccccccccccccccss 1

REASONS FOR GRANTING THE WRIT ........... 16

Si ceddudewuretdacvescedewedccvensete 17

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Ahern v. Board of Education of City of Chicago,

USS ROG OFS Or Ce, TOUR) sic cc dere tievccecesens 16

Alexander v. Sandoval,

532 U.S. 275, 121 S. Ct. 1511, 149 L. Ed. 2d 517

Sek orb nceaterrecssene debs cenvediwesbene wien 10

Bell v. Wolfish,

441 U.S. 520, 99 S. Ct. 1861, 60 L. Ed. 2d 447

CPR es kicdc ckaccnd ee eek LR 14

Board of Educ. of Oklahoma City Public Schools v.

Dowell, _

498 U.S. 237, 111 S. Ct. 630, 112 L. Ed. 2d 715

CE nhac naccpanneiddacadaneantnccdeceieeseem 15

EEOC v. New York Times Co.,

PB ee 0 Ee er rrr Serre 16

Freeman v. Pitts,

503 U.S. 467, 112 S. Ct. 1430, 118 L. Ed. 2d 102

EL Va Od dd Oud RRNA eas hAwe adie dee ebeaeees 15

Harris v. City of Philadelphia,

TF Fe Be Be Ge BORE ah be cence cccvccsesedes 16

Johnson v. Robinson,

Sar Fiat SUG COI GI FIIs kb ck ccc iedicscceces 16

Labor/Community Strategy Center, et al. v. Los

Angeles County Metropolitan Transportation

Authority, et al.,

263 BSG 1061 (Sth Ciz. 2001)... ccccccccnscccccs 1, 11

Lamphere v. Brown University,

Sra Ke FRG Chae Ce. BOGE) vc ccvnsccscccndenseves 16

v

TABLE OF AUTHORITIES - Continued

Page(s)

Milliken v. Bradley,

433 U.S. 267, 97 S. Ct. 2749, 53 L. Ed. 2d 745

ay PEPE TPE EE TIT ECELT LET ELE PEELE ETRE ELE LEe 8

Musso v. University of Minnesota,

eo 2g f fe @ Aer rere er ere 16

Rizzo v. Goode,

423 U.S. 362, 96 S. Ct. 598, 46 L. Ed. 2d 561

Pcnbackcscupbesecekeevieescsansteeaminskaie 15

Rufo v. Inmates of Suffolk County Jail,

502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867

BOP Pr PTeLTT ORT Tir TTT E Tere ee eee & 33, 2

Turner v. Safley,

482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64

SUNT is 56s niece shceleupnvarscsdasisnscseuanss- 15

United States v. Armour & Co.,

402 U.S. 673, 91 S. Ct. 1752, 29 L. Ed. 2d 256

RE 6s Saad Cede eas hee eekewenneatenteswo ase passim

United States v. ITT Continental Baking Co.,

420 U.S. 223, 95 S. Ct. 926, 43 L. Ed. 2d 148

CPE caine cnn 5 Chis ade cwenets + ibe 90 tech veneers passim

United States v. Michigan,

oo Be of gk Re. errr TeerrTTereere 16

United States v. Western Electric Co., ;

ew Rk ay | er ee ee 16

Youngberg v. Romeo,

457 U.S. 307, 102 S. Ct. 2452, 73 L. Ed. 2d 28

vi

TABLE OF AUTHORITIES - Continued

Page(s)

StaTuTES, RULES AND REGULATIONS

ao CPR § 771.10 ...... S ive tes ache sddhelied ve acueewa 9

ae Seals ee OOE s « 60. ¥0:0:0,00 450408 6neeaadewente neines 9

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By TE GE core cee cuveddeccevetersneccegaceniveuns 9

y got te By RT er ro eee er 1

Pe is Ae PEs o-s.0-4 4 0esencecnsensnonesieeenaasiien 2

PIR 6 WB. ens csscrecessccrsquieion ena 2

42 U.S.C. § 2000d

Title VI of the Civil Rights Act of 1964............ 2

42 U.S.C. § 4321

National Environmental Policy Act....... ee perc 9

ee ee ov cin cin hk anne 0005 <0s cdeeen deans 9

42 U.S.C. § 7410

NE SU ONES Sch ka os Kisses eceuedanedaneecauueren 9

gis ote S| Repro r er te cack ae ake eae 9

a Sees OD 0's 5.6 aed ween a bude o4acees uses tet 9

ee | ee eet Sor te ee ee 9

OF TO, © BO a inc veccdvevags<seense nF capa 9

oO, es ee eee 9

Cal, Pet URE, Coie 6 SFIS oe sve cccvccdescccsecesel

ee. Fe. COUN. Ce. Ss ive nies vv sesvevesdacewe 9

Cae. Tre. Tle. CORD © Rime os ives vcecccdesdacaccues i

Vii

TABLE OF AUTHORITIES - Continued

Page(s)

Oe Pe Sees MI IE I ce dconecacevenscentseess i

Federal Rules of Civil Procedure, Rule 53........... 14

Federal Rules of Civil Procedure, Rule 60(b) ........ 12

OPINIONS

The opinion of the United States Court of Appeals for

the Ninth Circuit is reported as Labor/Community Strategy

Center, et al. v. Los Angeles County Metropolitan Transporta-

tion Authority, et al., 263 F.3d 1041 (9th Cir. 2001) (Appen-

dix A hereto). The Order denying petitioners’ Petition for

Rehearing and for Rehearing en Banc is unreported.

(Appendix B.) The district court’s orders are unreported.

(Appendix C.) The special master’s “order” and his mod-

ification thereof is unreported. (Appendices D' and E.)

The Consent Decree is unreported. (Appendix F.)

¢

JURISDICTION

The opinion of the Court of Appeals was filed on

August 31, 2001. Petitioners timely filed their Petition for

Rehearing and Rehearing en Banc, which was denied by

Order filed October 16, 2001. The jurisdiction of this

Court is invoked under 28 U.S.C. § 1254(1).

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STATUTORY PROVISIONS INVOLVED

Pertinent federal and California statutes are set forth

in Appendix G.

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STATEMENT OF THE CASE

Introduction. The lower courts’ misinterpretation of

the Decree and the mandatory injunction based thereon

adversely affects millions of people in Los Angeles

eam

County who rely on the MTA’s multiple public transpor-

tation systems every day. In reaching their erroneous

conclusions, the lower courts have failed to follow this

Court’s decisions requiring consent decrees to be inter-

preted as contracts and failed to heed this Court's restric-

tions on the power of federal courts to substitute their

discretion for the discretion committed to the executive

and legislative branches of state governments. The man-

datory injunction imposed below threatens the ability of

the MTA to fulfill its federal and State statutory obliga-

tions by imperiling federal and State funding which is the

lifeblood of the MTA.

Institution of Litigation. In August 1994, respondents

(collectively, the Bus Riders Union [“BRU”)) filed a civil

rights action against the MTA and its named officers

charging violation of 42 U.S.C. §§ 1981, 1983 and of Title

VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.

Respondents claimed that the MTA disparately treated

bus riders (a majority of whom were people of color) and

train riders (a majority of whom were white) by spending

a disproportionate amount of its revenues on rail systems

as opposed to bus service and by providing poorer equip-

ment and service to minority riders than to white riders.?

Settlement Agreement Embodied in the Decree. In 1996,

shortly before trial, the parties entered into a settlement

agreement that was thereafter embodied in the Decree.

Mr. Donald Bliss, a private lawyer, was the mediator who

1 The MTA produced substantial evidence in the district

court that the assumed disparity in the treatment of people of

color and white bus and train riders was nonexistent.

Respondents introduced no contrary evidence.

assisted the parties in reaching the settlement. The Decree

named him as a special master to try to resolve disputes

arising from the Decree.

Because the MTA is a highly regulated public agency

with multiple federal and State obligations, the Decree

expressly limited the MTA’s responsibilities thereunder to

those which are consistent with its “other statutory

responsibilities and obligations.” (App. F at 174a.) The

Decree also limited the MTA’s expenditures for bus ser-

vices to “bus-eligible revenue realized in excess of funds

already specifically budgeted for other purposes.” (Id. at

174a.)

The Pivotal Issue Before the Special Master. In 1998,

disputes arose which the parties could not settle. The

critical issue was whether the MTA had failed to comply

with the provisions of the Decree obliging the MTA to

reduce the number of bus standees during rush hours.

(App. F at 175a-177a.) The Decree set “load factor targets”

for the MTA to meet in reducing standees over time. (Id.

at 175a.) A “load factor target” is a term of art in the bus

transit industry which is used by specialists to estimate

the number of buses that will be needed to accommodate

anticipated passenger demand for service on ordinary

days.? Those goals are defined as averages over 20-min-

ute peak periods. The averaging component means that

during measurement periods in rush hours, the MTA can

have some buses that exceed the target without violating

2 Load factor targets are also used by those managing bus

transit systems in preparing budgets and as performance

measures. The terminology was taken directly from the MTA’s

then existing “Consolidated Service Transit Policy.”

ii. peeuaaene a.»

the Decree. These goals are not and cannot be certitudes

because they are affected by multiple variables over

which the transit agency has nc control; e.g., traffic jams,

freeway accidents, unanticipated mechanical failures, bus

drivers’ illnesses, bad weather and passengers’ own

choices.

The Decree never required the MTA to buy a bus

whenever a target was missed. The Decree specifically

preserved to the MTA its discretion as to how the targets

were to be met, and the MTA promised to “plan to make

available sufficient additional buses and other vehicles”

to meet these target load factors. (App. F at 176a.) It

agreed to prepare a public report each fiscal year setting

forth its plan to meet the targets while “recognizing that

changes in ridership, fares, the economy and other factors

may require modifications to the plan.” (Id. at 176a.) In

deciding how to meet the standee reduction goals, the

Decree was explicit that bus financing was to be “consis-

tent with MTA’s other statutory responsibilities and obli-

gations. ...” (Id. at 174a.) If the MTA did not reach a

goal, it promised to meet the target as soon as possible

and to reallocate sufficient funds to meet the next target.

(Id. at 177a.)

As required by the Decree (id. at 176a), the MTA

presented its 1998 Load Factor Remediation Plan

(“LFRP”) to Mr. Bliss, contending that its LFRP (which

was being implemented) complied with the Decree for

the then current year and would comply with its next

: incremental standee reduction goal. The Decree was

explicit that Mr. Bliss’ authority on the load reduction

issue was limited to deciding whether the MTA had met

the current standee reduction goals and whether it had

allocated sufficient resources to meet the next target.

(App. F at 177a.) Nothing in the Decree required the MTA

to buy buses if targets were missed; targets could also be

met by vehicles other than buses, such as vans or taxis.

The MTA produced declarations, documents and

data collected between November 1997 through Septem-

ber 1998 to substantiate its claim that it was meeting and

would meet its obligations under the Decree. Mr. Bliss

took no evidence to interpret the Decree, nor did he take

any evidence regarding the MTA’s financial ability to

reach its standee reduction goals beyond the stretch

objectives of its own LFRP.

The Special Master’s Erroneous Conclusion and “Order.”

Mr. Bliss’ conclusion that the LFRP was inadequate was

based on his construing the Decree’s load factor targets as

mathematically precise requirements that the MTA had to

achieve every day on every covered line under all condi-

tions and on his assumption that the LFRP did not pro-

vide enough buses to meet the targets as he construed

that terminology.3 He disregarded provisions of the

Decree with respect to MTA’s capacity to finance and

operate such an expanded fleet, and he made no finding

about its ability to comply with its other statutory obliga-

tions if it were forced to exceed its LFRP.

3 As a mediator negotiating the settlement, Mr. Bliss may

have intended the load factor targets to be mathematical

certitudes for ease in finding violations, but his intent is

irrelevant. The parties’ intent controls; consent decrees “should

be construed basically as contracts,” although they are also

judgments. United States v. ITT Continental Baking Co., 420 U.S. at

236-37; United States v. Armour & Co., 402 U.S. at 681-82.

Although nothing in the Decree purported to confer

on Mr. Bliss the equitable powers of federal courts, he

issued an “order” requiring the MTA to buy 532 more

buses than the agency’s LFRP provided. Mr. Bliss disre-

garded the explicit provisions of the Decree leaving to the

MTA’s discretion the manner of meeting the targets, and

he also disregarded the terms of the Decree stating that

the targets could be met by vehicles other than buses.

(App- F at 176a.)

The MTA requested Mr. Bliss to clarify and to modify

his recommendations on the grounds, inter alia, that he

had prejudicially erred in interpreting the Decree and

that his authority thereunder did not include the power

to issue a mandatory injunction. On May 14, 1999, Mr.

Bliss slightly modified his “order” by reducing the

number of mandatory bus purchases. from 532 to 481.

(App. E at 157a-158a.)

Proceedings Before the District Court. The district court

granted the MTA’s request for a hearing to review Mr.

Bliss’ “order.” The court received extensive oral and doc-

umentary evidence; it also received briefs and heard oral

argument. The MTA produced substantial evidence that it

was in compliance with the Decree as properly inter-

preted and that it would meet the next target by imple-

menting its LFRP. It produced uncontradicted evidence

that (1) the term “load factor target” is a term of art in the

transit industry which is a goal, not a precise measure-

ment; (2) the MTA did not have the financial ability to

buy and put into service more buses than its LFRP pro-

vided while simultaneously meeting its statutory obliga-

tions to the users of its other transportation facilities and

services; (3) it could not obtain all the required federal

and State prior approvals necessary to further expand its

fleet; and (4) enforcement of Mr. Bliss’ “order” jeopar-

dized the MTA’s existing and future federal and State

funding sources.

The MTA’s evidence was uncontroverted that the

MTA had then allocated to the bus svstem virtually all

bus-eligible funds. Its projected deficits for the fiscal

years 2001 to 2004 were between $118 million and $197

million alone without the mandated bus purchases. If Mr.

Bliss’ bus purchasing “order” were enforced, it would

require further capital funding of approximately $115.8

million and operating funds of $97 million over 5 years.*

The MTA was unable to identify any source of operating

funds necessary for Mr. Bliss’ expansion of its permanent

fleet; the mandated increase in its fleet would increase

the MTA’s projected deficit to an unmanageable and irre-

sponsible level. The BRU’s opposition consisted of spec-

ulation that the MTA might have been able to find more

federal and State funding if it had tried harder.5

4 At the time of the district court hearing, the MTA was

spending approximately 44% of its total capital and operating

budget for fiscal year 2000 on its bus system. Rail services

consumed 22% of its budget. Highways and other programs

consumed approximately 21%, and the remainder was spent on

debt service. All discretionary funds available to the MTA and

not currently programmed for bus operations were being used

to fund other statutory obligations and responsibilities.

5 Respondents’ own expert witnesses conceded in the

district court that no admissible evidence existed to contradict

the MTA’s testimony that it could not fund further

improvements of bus service.

The District Court Ignored This Court’s Decisions

Requiring Consent Decrees to be Construed as Contracts and

Limiting Federal Court Interference With Discretion Commit-

ted to State Agencies. That court disregarded this Court's

decisions holding that consent decrees are to be con-

strued as contracts, not solely as judicial decrees. ITT

Continental Baking Co., 420 U.S. at 236-37; Armour & Co.,

402 U.S. at 681-82. It also ignored the holdings of this

Court forbidding federal courts to substitute judicial dis-

cretion for state or local governments’ discretion and

from mandating conduct when no constitutional violation

had been adjudicated. Rufo v. Inmates of Suffolk County

Jail, 502 U.S. 367, 112 S. Ct. 748, 116 L. Ed. 2d 867 (1992);

Milliken v. Bradley, 433 U.S. 267, 97 S. Ct. 2749, 53

L. Ed. 2d 745 (1977).

Without explanation, the district court adopted Mr.

Bliss’ interpretation of the load factor targets and rejected

the uncontradicted testimony before it that such goals are

not absolutes in the transit industry. That court relied

only on the evidence which had been presented only by

declarations and exhibits to Mr. Bliss and not on the up-

to-date testimony and documentary evidence offered to

the district court. The proceedings before Mr. Bliss did

not include evidence of intent of the parties.

The district court ignored the MTA’s evidence that it

could not find funds to operate buses beyond those

required to implement its own LFRP while simul-

taneously meeting the statutory conditions precedent

with which it had to comply; it disregarded the MTA’s

evidence that enforcement of Mr. Bliss’ “order” imperiled

the MTA’s existing and future funding.®

The district court modified Mr. Bliss’ “order” by

slightly reducing the number of buses that the MTA was

mandated to purchase and remanded one issue to Mr.

Bliss; in all other respects the court “affirmed” Mr. Bliss’

¢ Among the many state and federal transportation and

environmental statutes and regulations with which the MTA is

required to comply are the following: 23 U.S.C. §§ 103-105

(establishment of eligibility and various approvals required for

expenditure of National Highway System funds); 23 U.S.C.

§ 134 (regional transportation planning process requirements

and requirements for expenditure of funds in a Transportation

Improvement Program); 23 U.S.C. § 149 (sets eligible uses of

Congestion Mitigation and Air Quality Improvement Program

funds); 49 U.S.C. § 5303, et seq. (establishing a regional

transportation planning process and setting criteria to be used

in the process; stating requirements for expenditure of funds);

42 U.S.C. §§ 4321-4347 (National Environmental Policy Act); 49

U.S.C. § 5303, et seq. (reallocation of the MTA’s resources cannot

be undertaken without the Southern California Association of

Governments’ determination that such reallocation will not

worsen the South Coast Air Basin’s air quality; new

expenditures also require approval of the Federal Highway

Administration, the Federal Transit Administration and the

Environmental Protection Agency); 23 U.S.C. § 134(h)(6); 49

U.S.C. § 5304(b), (c). Additional statutes require the MTA to

provide public notice and allow the public a reasonable

opportunity to comment on new purchases and any shift in

funds to buses from other programs. 49 U.S.C. § 5304(d); Cal.

Pub. Util. Code § 130106. Still other statutes set other statute

and regulatory hurdles to be crossed before fleet expansion

could be undertaken by the MTA. E.g., Cal. Pub. Util. Code

§ 130001(b); 42 U.S.C. § 4321, et seq. (National Environmental

Policy Act); 23 C.F.R. § 771.105; 42 U.S.C. § 7410 (Clean Air Act).

10

“order” as if it were reviewing an order of a federal

magistrate judge serving as special master.

The Court of Appeals Affirmed the District Court and

Failed to Follow This Court’s Decisions. Petitioners

appealed. The case was orally argued and submitted on

May 2, 2000. On April 27, 2001, the Court of Appeals

ordered the parties to file supplemental briefs addressing

the impact of Alexander v. Sandoval, 532 U.S. 275, 121 S. Ct.

1511, 149 L. Ed. 2d 517 (2001) (curtailing private civil

rights actions alleging disparate treatment of minorities)

and two cases decided by the Seventh Circuit. The major-

ity and dissenting opinions were filed on August 31,

2001, without mentioning any of the cases that the parties

briefed in response to the appellate court’s order.

The majority opinion of the court affirmed the dis-

trict court without responding to the issues presented to

that court which are presented here. Despite petitioners’

discussion of ITT Continental Baking and Armour & Co.,

the majority held that the Decree should be construed

only as a judgment. According to the majority opinion,

federalism concerns evaporated because the MTA sup-

posedly consented to whatever interpretation of the

Decree that Mr. Bliss chose to impose and likewise sup-

posedly consented to his assuming the powers of a fed-

eral jurist.

The majority opinion concludes the MTA’s impend-

ing loss of State and federal funding caused by the dis-

trict court’s mandatory injunction is of no significance

because its loss of funding would not violate the funding

statutes:

11

[T]he federal and state laws to which MTA

refers are simply funding provisions with which

MTA may choose to comply. The reward for

compliance is state and federal funding. How-

ever, failure to follow the requirements of the

funding mandates is not a violation of the law.

At most, it might disqualify MTA from entitle-

ment to receive funds. MTA’s compliance with

the district court’s order would no more violate

federal law than would a state legislature’s deci-

sion to lower the statutory drinking age below

twenty-one in spite of the federal law that con-

ditions receipt of federal funds on a drinking

age of twenty-one or older. [Citations omitted.]

The state might lose federal highway funds

under federal law, but it would not be in viola-

tion of that law. Thus, the district court did not

abuse its discretion.

263 F.3d at 1051. (Emphasis in original.)

That opinion never explains how the MTA can obey

the courts’ mandates without the essential funding to do

so, nor why the MTA’s inability to comply with statutory

mandates is not itself a violation of law. Although the

MTA called ITT Continental Baking Co. and Armour & Co.

to the Court of Appeals’ attention, the panel failed to

follow or even mention those cases.

The majority opinion cites Rufo v. Inmates of Suffolk

County Jail, 502 U.S. 367, 378, 112 S. Ct. 748, 116 L. Ed. 2d

867 (1992), to support its conclusion that the Decree

should be interpreted only as a judgment. (App. A at

12

13a.) The court’s reliance on Rufo for that point is mis-

placed.” In Rufo, the issue was whether that consent

decree was subject to modification under Rule 60(b), Fed-

eral Rules of Civil Procedure; the consent decree had

been entered after the jail conditions attacked had been

adjudicated unconstitutional.

The Court of Appeals’ Opinion Cannot Be Reconciled with

this Court’s Decisions. The courts below ignored the MTA’s

evidence explaining the source and meaning of the load

factor targets’ language used in the Decree. The Ninth

Circuit simply repeated the district court’s conclusion

(adopting Mr. Bliss’ interpretation of the terminology)

that the load factor targets “set out a mathematically

precise method of measuring bus overcrowding and a

detailed schedule of load factor targets that were to be

met by specific dates.” (App. A at 14a.) No evidence was

before Mr. Bliss or the lower courts to sustain those

conclusions. Because this Court requires consent decrees

to be interpreted as contracts for enforcement purposes,

the intention of the parties in using the load factor target |

terminology in the Decree is crucial. The MTA unques-

tionably intended to use the terminology as it was used in

the transit industry. The record contains no other evi-

dence of the intent of the parties.

7 However, Rufo is directly relevant on a. different point:

“Federal courts may not order States or local governments, over

their objection, to undertake a course of conduct not tailored to

curing a constitutional violation that has been adjudicated.”

[Citation omitted.] 502 U.S. at 389.

13

Like the district court, the Court of Appeals disre-

garded the substantial, uncontradicted evidence pre-

sented by the MTA establishing that it had no bus-eligible

resources to operate a bus fleet expanded beyond its own

remedial plan. Instead, the majority concluded that Mr.

Bliss’ factual finding that the MTA had not exhausted all

sources of revenue was not clearly erroneous. Neither Mr.

Bliss nor the courts below identified or quantified such

funding sources or decided how any such financial

resources would be sufficient to fulfill the judicial man-

dates and the MTA’s statutory obligations.

The courts below failed to recognize that the data

upon which Mr. Bliss reached his conclusions were out of

date when the district court heard the case. The lower

courts prejudicially erred in relying on the stale evidence

and ignoring the MTA’s abundant evidence proving that

it was in compliance with the Decree as correctly con-

strued. By the time the Ninth Circuit decided the case, the

evidence before Mr. Bliss was ancient transit history. Like

the district court, the Court of Appeals relied on Mr.

Bliss’ findings and conclusions as if they had been timely

made by a federal judge correctly construing the Decree

and relying on current evidence.

The majority opinion accepted the district court's

erroneous conclusion that the Decree gave Mr. Bliss the

equitable powers of a federal judge because the inartful

settlement agreement embodied in the Decree gave him

authority to resolve disagreements. (App. A at 17a.)® It

® Of course, he could resolve disputes by helping the

parties reach an agreement or by recommending a proposed

14

rejected the MTA’s contention that Mr. Bliss did not and

could not have the powers of a federal judge invoking a

quasi-estoppel theory based on the MTA’s erroneously

seeking a temporary restraining order from Mr. Bliss to

forestall a threatened strike years ago. (App. A at

17a-18a.) The MTA could not confer on Mr. Bliss federal

equitable power by its former lawyers’ mistake. No one

can confer federal judicial powers on any person in pri-

vate law practice.

Contrary to this Court’s directions in Youngberg v.

Romeo, 457 U.S. 307, 323, 102 S. Ct. 2452, 73 L. Ed. 2d 28

(1982), neither the district court nor the Court of Appeals

gave the slightest deference to the expertise of the MTA

in managing its extremely complex integrated public

transportation systems. Those courts also ignored Bell v.

Wolfish, 441 U.S. 520, 562, 99 S. Ct. 1861, 60 L. Ed. 2d 447

(1979) (federal courts cannot second guess expert admin-

istrators on matters on which they are better informed,

nor can they intrude into agencies’ management of their

affairs, except to cure federal statutory or constitutional

violations). Neither the courts below nor Mr. Bliss has

had any experience or expertise in managing a major

public transportation system. ,

Even when federal courts have undertaken remedial

decrees after a violation of constitutional rights has been

adjudicated, compliance with judicial decrees has not

been made absolute. Judicial inquiry is limited to ascer-

taining whether unlawful conduct has been “eliminated

order to the district court. E.g., Rule 53, Federal Rules of Civil

Procedure.

15

to the extent practicable.” Freeman v. Pitts, 503 U.S. 467,

492, 112 S. Ct. 1430, 118 L. Ed. 2d 102 (1992) (quoting

Board of Educ. of Oklahoma City Public Schools v. Dowell, 498

U.S. 237, 249-50, 111 S. Ct. 630, 112 L. Ed. 2d 715 (1991).

Compliance with the district court’s mandatory injunc-

tion, affirmed by the Court of Appeals, is not practicable

because the MTA can neither obtain the prior approvals

mandated by statute nor can it fund the courts’ mandates.

The majority opinion never mentions Rizzo v. Goode,

423 U.S. 362, 378-80, 96 S. Ct. 598, 46 L. Ed. 2d 561 (1976)

(considerations of federalism require reversal of a lower

court’s remedial order revising the internal operations of

a state or local agency in absence of extraordinary cir-

cumstances; federal courts must respect state govern-

ments’ wide latitude in conducting their own internal

affairs). No such extraordinary circumstances existed in

this case.

The injunction is excessively intrusive. The lower

courts disregarded the fact that the Decree specifically

gives the MTA exclusive discretion in deciding how to

meet load factor goals, and they ignored the constraints

imposed by this Court on federal courts to avoid colli-

sions with constitutionally required separation of powers

and with established federalism principles. Running com-

plex public transportation systems, like running a prison,

“is an inordinately difficult undertaking that requires

expertise, planning, and the commitment of resources, all

of which are peculiarly within the province of the legisla-

tive and executive branches of government.” Turner v.

Safley, 482 U.S. 78, 84-85, 107 S. Ct. 2254, 96 L. Ed. 2d 64

(1987).

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16

REASONS FOR GRANTING THE WRIT

This case is singularly important to the State of Cali-

fornia, the County of Los Angeles, the MTA and to mil-

lions of persons who depend upon the MTA’s public

transportation facilities and services.

The Ninth Circuit’s opinion cannot be reconciled

with this Court’s decisions sharpiy limiting federal judi-

cial intrusion into the affairs of state and local govern-

ments and their agencies absent an adjudicated

constitutional or federal statutory violation.

By failing to follow ITT Continental Baking Co., 420

U.S. 223, and Armour & Co., 402 U.S. 673, the Ninth

Circuit has placed itself in conflict with Lamphere v. Brown

University, 875 F.2d 916, 921 (ist Cir. 1989); EEOC v. New

York Times Co., 196 F.3d 72, 78 (2d Cir. 1999); Harris v. City

of Philadelphia, 137 F.3d 209, 212 (3d Cir. 1998); Johnson v.

Robinson, 987 F.2d 1043, 1046 (4th Cir. 1993); United States

v. Michigan, 940 F.2d 143 (6th Cir. 1991); Ahern v. Board of

Education of City of Chicago, 133 F.3d 975, 981 (7th Cir.

1998); Musso v. University of Minnesota, 105 F.3d 409, 411

(8th Cir. 1997); and United States v. Western Electric Co.,

894 F.2d 430, 435 (D.C. Cir. 1990).

Unless these errors are corrected by this Court, the

MTA will be bound to adhere to the Court of Appeals’

prejudicially erroneous decision that the Decree required

it to meet the standee reduction goals precisely every day

on every line - an impossible goal to which the MTA

never agreed - and to do so by buying more buses than

the Decree obligated it to purchase and without the prior

approvals and funding necessary to operate the MTA’s

multi-modal transportation systems.

17

The Decree provides for its own termination if the

MTA is in compliance with the Decree. (App. F at 185a.) If

not overturned by this Court, the MTA is wrongfully

forced into noncompliance, thereby threatening it with

continuing intrusive management by Mr. Bliss and by the

federal courts. Unless this Court in exercise of its super-

visory powers overturns the Ninth Circuit, that court’s

disobedience to this Court’s decisions will be uncorrected

and the intercircuit conflict will persist.

The financial pernicious anemia imposed on the MTA

by the errors of the courts below threatens its existence as

an agency capable of meeting its statutory obligations

and the transportation needs of millions of people depen-

dent on the MTA’s systems, including bus riders.

.

vy

CONCLUSION

For all of these reasons, Petitioners respectfully

request that the Petition be granted.

Respectfully submitted,

Morrison & FOERSTER LLP

SHIRLEY M. HursTEeDLer

CHRISTENSEN, MILLER, FINK, JACoss,

Graser, Wer & SHAPIRO, LLP

Patricia L. GLASER

James S. SCHREIER

OFFICE OF THE County CouNSsEL

Litovp W. PELLMAN

STEVEN J. CARNEVALE

Dated: January 11, 2002