Appendix — City of Cincinnati v. Miller

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Supreme Cour, us.

No. 01-___ FILED

In The 5 4 JAN rt 2002

Supreme Court of the United’ State@£n«

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.

On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Ninth Circuit

APPENDIX TO

PETITION FOR A WRIT OF CERTIORARI

—

OFFICE OF THE COUNTY COUNSEL CHRISTENSEN, MILLER, FINK,

Lioyvp W. PELLMAN Jacoss, Giaser, Wen &

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 ion 18th Floor

S wren H ces Los Angeles, California 90067

a ee 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

APPENDIX A

LABOR/COMMUNITY STRATEGY CENTER;

Bus Riders Union; Southern Christian Leadership

Conference of Greater Los Angeles County;

Koren [sic] Immigrant Workers Advocates;

Maria Guardado; Ricardo Zelada; Noemi Zelada;

Pearl Daniels, Plaintiffs-Appellees,

LOS ANGELES COUNTY METROPOLITAN

TRANSPORTATION AUTHORITY,

Defendant-Appellant,

and

Julian Burke, MTA Chief Executive Officer in his

individual and official capacities, Defendant.

No. 99-56581.

United States Court of Appeals,

Ninth Circuit.

Argued and Submitted May 2, 2000

Filed Aug. 31, 2001

Shirley M. Hufstedler, Morrison & Foerster, Los

Angeles, California, for the defendant-appellant.

E. Richard Larson, Erica J. Teasley, NAACP Legal

Defense and Educational Fund, Inc., Los Angeles, Califor-

nia; Constance L. Rice, English Munger & Rice, Los

Angeles, California; Elaine R. Jones, Norman J. Chachkin,

Theodore Shaw, NAACP Legal Defense and Educational

Fund, Inc., New York, New York, for the plaintiffs-appel-

lees.

Robert Garcia, Environmental Defense Fund; Joel

Reynolds, Natural Resources Defense Council, Coalition

for Clean Air; Stewart Kwoh, Asian Pacific Americal [sic]

Legal Center of Southern California; Scott Kuhn, Commu-

nities for a Better Environment, for the amicus.

Appeal from the United States District Court for the

Central District of California; Terry J. Hatter, Jr., District

Judge, Presiding. D.C. No. CV-94-05936-TJH.

Before: BROWNING, HALL, and SILVERMAN, Cir-

cuit Judges.

Opinion by Judge SILVERMAN; Dissent by Judge

CYNTHIA HOLCOMB HALL.

SILVERMAN, Circuit Judge:

A district court approved a consent decree that set-

tled a civil rights lawsuit between a group of bus pas-

sengers and the Los Angeles County Metropolitan

Transportation Authority (“MTA”) concerning the quality

of bus service in their community. Fourteen months later,

after certain service improvement goals had not been

met, the district court — first through a Special Master,

then directly - entered detailed orders concerning the

operation of the L.A. County transportation system,

including an order that MTA immediately acquire 248

additional buses to reduce passenger overcrowding even

if that meant diverting funds from other transportation

services under MTA’s jurisdiction. MTA appealed. Hold-

ing that the Special Master and district court correctly

interpreted and applied the Consent Decree, and that the

Special Master and district court acted within their

power, we affirm the district court.

I. Facts

On August 31, 1994, a plaintiff class of Los Angeles

County bus riders filed suit against MTA, alleging that

MTA’s transportation policies discriminated against

minorities in violation of the Civil Rights Act of 1964 and

the Fourteenth Amendment to the United States Constitu-

tion. MTA is the statutorily created regional transporta-

tion planning, construction, funding, and operating

agency for Los Angeles County. The suit alleged that

MTA was spending a disproportionately large portion of

its budget on rail lines and suburban bus systems that

would primarily benefit white suburban commuters,

while intentionally neglecting inner-city and transit-

dependent minority bus riders who relied on the city bus

system. The lawsuit was triggered by MTA’s decision to

spend several hundred million dollars on a new rail line,

foregoing an opportunity to reduce overcrowding prob-

lems on city buses, while at the same time increasing bus

fares and eliminating monthly discount passes. In Octo-

ber 1996, after over two years of discovery and just before

a trial was scheduled to begin, the parties reached a

settlement and submitted to the district court a proposed

consent decree that set forth a detailed plan to improve

bus service.

A. The Consent Decree

Under the consent decree’s terms, MTA agreed to

make service improvements in the bus fleet to alleviate

overcrowding and agreed to a set fare structure and fare

increase procedure. In order to reduce bus overcrowding,

the decree set forth specific “load factor targets”

(“LFTs”)! that were to be met by specific dates:

Improved Performance Goal: Reduced Load Factor

Targets. MTA’s performance in meeting this critical

objective of responding to consumer demand for bus

services efficiently shall be measured by the reduc-

tion in levels of crowding on board buses. MTA shall

establish as a five-year goal to be reached by the end

of the fifth complete fiscal year following the

approval of this Consent Decree, the reduction of the

maximum load factor ceiling for all bus routes from

1.45 to 1.2 in the following increments (“target load

factors”):

December 31, 1997, 1.35

June 30, 2000, 1.25

June 30, 2002, 1.2

Thereafter, MTA shal] maintain the 1.2 load fac-

tor for the duration of this Consent Decree.

The decree also called for the formation of a Joint

Working Group (“JWG”) made up of an equal number of

representatives from the plaintiffs’ class and MTA. The

decree outlined the process by which the load factor

targets were to be met:

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

number of people standing on a bus in relation to the number of

seats. It is calculated by dividing the total number of bus

passengers riding a bus during a specific period of time (20

minutes in this case) by the total number of seats on the bus. A

load factor of 1.35, for example, means that the average number

of standees on a given bus during a given 20-minute period

exceeds the number of seats by a factor of .35.

MTA Plans to Meet Targets. MTA will plan to

make available sufficient additional buses and other

vehicles to meet these target load factors. While MTA

will have the discretion in determining how the tar-

gets will be met, MTA will consult with the JWG in

formulating and implementing this plan. MTA will

prepare at least 90 days prior to the beginning of

each fiscal year, and make publicly available, a

report setting forth its plan to meet the targets as of

the date the report is issued, recognizing that

changes in ridership, fares, the economy and other

factors may require modifications to the plan. In

addition, when MTA makes its scheduled modifica-

tions to its long range plan it shall incorporate plans

to insure the availability and operation of the addi-

tional buses and other vehicles required to meet

these targets. If ridership shall increase by more than

15 percent on any bus line MTA shall nevertheless

make its best efforts to meet the target for that line

and the target for that line may be deferred one (and

only one) year. In addition, the JWG will designate a

list of bus lines which may be exempted from the

load factor requirement, such as lines with low fre-

quency service.

As to how the improvements in load factors would

be paid for, the decree stated:

Consistent with MTA’s other statutory respon-

sibilities and obligations, MTA’s first priority for the

use of all bus-eligible revenue realized in excess of

funds already specifically budgeted for other pur-

poses shall be to improve bus service for the transit-

dependent by implementing MTA’s obligations pur-

suant to this Consent Decree. If sufficient funding is

not provided to meet the obligations set forth in this

Consent Decree, the matter shall be addressed in

OOo

accordance with the procedures set forth in this Con-

sent Decree.

The decree also outlined a procedure to be followed in

the event that MTA failed to meet the required LFTs by

the dates scheduled:

Failure to Meet Targets. If MTA fails to meet the target

load factors for all bus lines by the dates speci-

fied .. . , MTA shall meet the target as soon as

possible and reallocate sufficient funds from other

programs to meet the next lower target load factor as

scheduled. The reprogrammed funds, which may

include but not be limited to revenues from Proposi-

tions A and C discretionary funds, shall be used to

meet the target load factors. Any dispute concerning

whether the targets have been met; or if targets have

not been met, whether ‘sufficient funds have been

reprogrammed to meet the next target will be

reviewed by the JWG. If the JWG cannot resolve the

matter it will be referred to the Special Master. The

failure of MTA to meet the target load factors shall

not be deemed a changed or unforeseen factual con-

dition for purposes of seeking a modification of this

Consent Decree by MTA.

The decree also provided for the appointment of a

Special Master to facilitate the resolution of disputes. As —

to this dispute resolution process, the decree provided:

Any dispute arising under any provision of Sec-

tions I through IV [which included the schedule of :

target load factor deadlines and funding reallocation

requirements] of this Consent Decree in which the

JWG has a role shall initially be addressed by the

JWG. If the JWG cannot resolve the matter, or if the

JWG does not have a role in the disputed function,

this dispute shall be referred to the attorneys to the

parties. If the attorneys cannot resolve the matter

informally, the attorneys shall refer the matter to the

Special Master for resolution, pursuant to procedures

set forth by the Special Master. Any matter resolved

by or referred to the Special Master may be reviewed

by the District Court, along with the recommenda-

tions of the Special Master, if any, upon motion by

either of the parties.

On October 29, 1996, the district court approved the

consent decree.

B. The Special Master

Fourteen months later, soon after the first LFT dead-

line passed on December 31, 1997, the Special Master was

pressed into service. The plaintiffs alleged that MTA had

failed to meet the first LFT. In addition, the parties dis-

puted the meaning of the LFTs, the extent to which MTA

had or had not met its obligations under the consent

decree, and the proper remedy to achieve compliance

with the decree. After going through the preliminary

dispute resolution procedure involving the JWG outlined

in the decree, the parties submitted the dispute to the

Special Master.

The Special Master set out a bifurcated procedure for

resolving the matter. First, the parties were to brief the

issue of how to measure compliance with the decree.?

2 In measuring compliance, MTA argued that the load

factors for all bus lines during a given period of time should be

compiled and averaged, then reduced by a certain factor to

account for a standard number of mechanical failures. The

Special Master rejected MTA’s proposal, ruling that compliance

with the LFTs had to be measured by looking at each individual

I EEE

Second, once the Special Master had determined a

method for measuring compliance, the matter was to be

referred back to the JWG to determine whether MTA had

fulfilled its obligations, and to craft a remedial plan if it

had not. If the JWG could not agree on a remedial plan,

the parties would then submit their respective remedial

proposals to the Special Master for resolution of the issue.

bus line. MTA had to show that during any 20-minute weekday

period in the peak direction of travel on the line, the average

ratio of passengers to seats available did not exceed the

particular LFT. Under the Special Master’s interpretation, a

single bus line would be tested at a number of different points

during the same 20-minute period. If the average of those test

results exceeded the relevant target load factor, MTA would

have failed to comply with the decree for that bus line. The

Special Master based this interpretation on the language of the

decree itself, such as the requirement that MTA reduce the

maximum load factor ceiling “for all bus routes,” and the

definition of the peak. load factor as the total number of

passengers divided by the total number of seats “during any 20

minute weekday period in the peak direction of travel on each

bus line.”

The Special Master also resolved a dispute regarding the

method of gathering load factor data. MTA argued that

compliance should be-measured by gathering data only during

fixed time periods traditionally used by MTA, called the “fixed

window” approach. The Special Master rejected this

interpretation, holding that data could be gathered during any

20-minute period as long as that 20-minute window did not

overlap with another 20-minute period. This was known as the

“sliding window” approach. The Special Master based his

interpretation on the language in the decree requiring the load

ceiling to be achieved during “any” 20-minute period, and

because he determined that the sliding window approach

would provide a more accurate assessment of the load factor

conditions on the buses.

In September 1998, the JWG found that MTA had

failed to meet the decree’s December 31, 1997, 1.35 LFT

on 75 out of the 79 bus lines measured. The JWG could

not agree on a remedial plan, so the parties again submit-

ted briefs to the Special Master assessing the violations

and proposing remedies.

The Special Master issued a “Memorandum Decision

and Order” that attempted to steer a middle course

between the competing remedial plans. In analyzing the

submitted data, the Special Master found that the LFT

violations were caused primarily by two factors: 1) “miss-

ing buses” — buses that were already in MTA’s fleet and

scheduled to run, but failed to show up on a given day

for some reason (usually mechanical problems, but also

lack of a driver, traffic problems, etc.); and 2) “insufficient

capacity” — simply not having enough buses available in

MTA’s fleet to schedule sufficient service to meet demand

on a particular line.

On the question of missing buses, the plaintiffs

argued that 333 new buses were needed to solve the

problem. However, the Special Master concluded that

MTA’s remedial plan to accelerate procurement of new

buses and to convert unreliable alternative fuel vehicles

to diesel power would adequately address the missing

bus problem, and that no additional bus purchases were

needed.

As to insufficient capacity, MTA proposed purchasing

130 new buses by June 2000, in addition to 53 that were

already scheduled to be procured for fleet expansion.

MTA also claimed that by more effectively managing its

existing bus fleet it could increase the operating capacity

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of the fleet, in effect getting more work out of the buses it

already had rather than buying new buses to do that

work. On the other hand, the plaintiffs proposed the

purchase of 553 additional buses to meet the insufficient

capacity problem. They argued that any reliance on MTA

increasing its capacity through improved management

would have been misplaced, given that MTA could have

implemented the proposals earlier if they were really

workable.

The Special Master ruled that MTA had overesti-

mated the extent to which better management could

resolve insufficient capacity problems and concluded that

MTA’s remedy would not resolve adequately the LFT

violations. However, the Special Master also held that the

plaintiffs had overestimated the number of buses

required to fix the problem. Accordingly, the Special Mas-

ter found that:

[T]o remedy the load factor violations caused by

‘insufficient capacity’ the MTA would need to add a

total of 430 new buses to the fleet (277 plus 55 spares

to meet the [missed December 31, 1997] 1.35 LFT and

126 plus 25 spares to meet the [then-upcoming June

30, 2000] 1.25 LFT, minus 53 buses already scheduled

by MTA for purchase).

Because of the inherent delay in the procurement

process, the Special Master also held that further action

was necessary:

I have concluded that [the plaintiffs are] correct in

[their] assertion that the MTA likely cannot meet the

1.35 load factor target “as soon as possible” (and the

1.25 load factor target by June 2000) unless it acts

lla

immediately to obtain additional buses on a tempor-

ary basis to remedy the load factor violations caused

by insufficient capacity. In order to meet the require-

ments of Section II.A of the Consent Decree [setting

forth the LFT deadlines], the MTA therefore should

use its best efforts to lease or obtain, by whatever

means available, at least 277 additional buses of any

type appropriate for service on the MTA system.

These buses should be scheduled for delivery on or

before December 31, 1999 and should remain in ser-

vice until the new buses required by the remedial

plan are delivered. (Footnote omitted.)°

C. District Court

In accordance with the appeal provision of the con-

sent decree, MTA challenged the Special Master’s ruling

in district court, claiming: 1) that the remedy imposed

was based on an erroneous interpretation of the consent

decree; and 2) the remedy ordered by the Special Master

exceeded both his power and the power of the district

court. The district court affirmed the authority of the

Special Master and the district court to order a remedy

under the decree. The court also found that “the Special

Master’s findings regarding compliance with the consent

decree were not clearly erroneous.” As to the Special

Master’s remedial plan, the district court stated its ruling

as follows:

3 Although the Special Master initially ordered MTA to

acquire 277 new buses, plus 55 spares, he reduced that number

to 248 plus spares on May 14, 1999, following MTA’s motion for

clarification and modification of the March 6, 1999 order.

12a

1. The Special Master’s determination that 248+

additional buses are needed, and must be purchased

immediately, to resolve “insufficient capacity” viola-

tions so as to meet the 1.35 target load factor that

should have been met be [sic] December 31, 1997 is

affirmed. The MTA shall, within thirty days, through

lease or by other means, obtain 248 buses on a tem-

porary basis until the 248 purchased buses arrive.5

2. Given the apparent increased reliability of

the MTA’s current fleet, the Special Master shall

reconsider whether the additional 49° buses he

ordered the MTA to purchase for spares are still

needed.

3. The Court believes that it is too early to

determine whether MTA is incapable of meeting the

1.25 target load factor by June 30, 2000, given the

current progress apparently made by the MTA and

the age of the point check data presented to the

Special Master and the Court. Therefore, the _ ecial

Master shall re-evaluate the likelihood of .«e MTA

* The district court’s bus count mirrors the Special Master’s

final order.

5 The district court amended this portion of the order on

October 6, 1999. The amended order required that, “MTA shall,

by November 5, 1999, contract to obtain 248 buses on a

temporary basis unti! the 248 purchased buses arrive. The 248

temporary buses shall be placed into operation no later than

January 3, 2000.”

6 The 49 spare buses number appears to reflect the

application of a standard 20% reserve replacement figure that

the Special Master had used to calculate the number of new

buses needed to the revised number of temporary buses ordered

by the district court. Twenty percent of the 248 buses the district

court ordered procured is approximately 49.

—aaaaaeeeeeEeEeEeEyEyEyEE————————EE

13a

meeting the 1.25 target load factor after he is pre-

sented with more up-to-date point check date [sic].

(Footnotes added.)

MTA appealed the district court’s ruling, and

obtained a stay pending the appeal.

II. Standard of Review

A consent decree is enforceable as a judicial decree

and “is subject to the rules generally applicable to other

judgments and decrees.” Rufo v. Inmates of Suffolk County

Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867

(1992). This court reviews de novo the district court’s

interpretation of the consent decree, but must defer to the

district court’s factual findings underlying the interpreta-

tion unless they are clearly erroneous. Gates v. Gomez, 60

F.3d 525, 530 (9th Cir.1995); United States v. Gila Valley

Irrigation Dist., 31 F.3d 1428, 1432 (9th Cir.1994). We must

“give deference to the district court’s interpretation based

on the court’s extensive oversight of the decree from the

commencement of the litigation to the current appeal.”

Gates, 60 F.3d at 530 (quoting Officers for Justice v. Civil

Serv. Comm'n, 934 F.2d 1092, 1094 (9th Cir.1991)).

A district court order requiring modification of a

defendant's policy to comply with the consent decree “is

effectively an injunction and will be reversed ‘only where

the district court abused its discretion or based its deci-

sion on an erroneous legal standard or clearly erroneous

findings of fact.’ ” Id. A federal court enjoys broad equita-

ble powers; its choice of equitable remedies is reviewed

for an abuse of discretion. Stone v. City and County of San

14a

Francisco, 968 F.2d 850, 861 (9th Cir.1992); Kasper v. Board

_of Election Comm'rs, 814 F.2d 332, 339 (7th Cir.1987).

III. Discussion

MTA advances the same two arguments to this court

that it advanced to the district court: 1) the remedial plan

imposed by the district court and the Special Master was

based on a misinterpretation of the consent decree; and 2)

the district court and the Special Master did not have the

power to order MTA to implement the remedial plan.

MTA is wrong about the first; the remedial plan was

based on a correct interpretation of the consent decree,

and MTA’s claims to the contrary are without merit.

Whether the court and the Special Master had the power

to order MTA to immediately buy 248 new buses is a

more difficult question.

A. Interpretation of the Consent Decree

1. Best Efforts

MTA’s primary argument on the interpretation of the

consent decree is that the load factor targets were simply

performance goals that MTA promised to use its “best

efforts” to meet, but with which the decree only required

“substantial compliance.” This argument is refuted by a

reading of the decree as a whole. The decree set out a

mathematically precise method of measuring bus over-

crowding and a detailed schedule of load factor targets

that were to be met by specific dates. After the five year

schedule of descending load factor targets, the decree

provided that “MTA shall maintain the 1.2 load factor for

15a

the duration of this Consent Decree.” (Emphasis added.)

The decree also provided that in the event MTA missed

one of the scheduled LFTs, MTA “shall meet the target as

soon as possible and reallocate sufficient funds from

other programs to meet the next lower target load factor

as scheduled.” (Emphasis added.) To say that MTA’s

“best efforts” are enough for compliance would be to

ignore the precise load factor schedule set out in the

decree.

MTA cites “best efforts” language in the decree out of

context as support for its position. In context, however,

the language actually weighs against MTA’s argument.

The decree provided that: “If ridership shall increase by

more than 15 percent on any bus line MTA shall neverthe-

less make its best efforts to meet the target for that line

and the target for that line may be deferred one (and only

one) year.” The passage clearly indicates that MTA was

required to meet the load factor targets as scheduled. In

the event of a large unexpected ridership increase, the

decree released MTA from that obligation for one and

only one year. It is clear that MTA’s obligation was to

meet the scheduled load factor targets, not simply to use

its “best efforts.”

2. Statutory Obligations

MTA claims that because it does not have sufficient

funds to purchase new buses under the Special Master’s

remedial plan, the decree excuses compliance to the

extent that the remedial plan would prevent MTA from

meeting its other statutory obligations. In support of this

aire eaten

l6a

claim, MTA cites to the following language in the consent

decree:

Consistent with MTA’s other statutory respon-

sibilities and obligations, MTA’s first priority for the

use of all bus-eligible revenue realized in excess of

funds already specifically budgeted for other pur-

poses shall be to improve bus service for the transit-

dependent by implementing MTA’s obligations pur-

suant to this Consent Decree.

This argument overlooks other language in the “Fail-

ure to Meet Targets” section of the decree that addressed

this specific situation and required MTA to “reallocate

sufficient funds from other programs to meet the next

lower target load factor as scheduled.” Any dispute about

the fund reallocation was to be settled by the JWG, or if

necessary, the Special Master. The Special Master pointed

out that MTA had failed to demonstrate that it lacked

sufficient funds to otherwise meet its statutory obliga-

tions:

In the MTA’s May 4, 1998 draft Restructuring Plan,

the MTA identifies the many funding sources for

which bus capital and/or operating expenses are

eligible. . . . For many of these bus-eligible funding

categories, no funds at all have been allocated to

buses. . . . Thus, the fact that the MTA apparently has

not applied for, allocated or received these bus-eligi-

ble funds somewhat undercuts the MTA’s argument

that it will be forced to tap already-committed funds,

and therefore violate its other statutory obligations,

to comply with the Decree.

The Special Master’s factual findings are entitled to def-

erence and are reviewed for clear error. Fed.R.Civ.P.

53(e)(2). MTA has not pointed to any evidence suggesting

17a

that the Special Master’s factual finding that MTA had

not exhausted all sources of funding was clearly erro-

neous.

B. Power to Require Compliance with the Decree

1. Special Master as Mediator

MTA argues that the consent decree reflected the

parties’ contemplation that the Special Master would

mediate disputes, not resolve them. This argument is

without merit.

In outlining the procedure for resolving disputes, the

decree explicitly provided that if the lawyers could not

resolve a problem referred from the JWG, they “shall

refer the matter to the Special Master for resolution, pur-

suant to procedures set out by the Special Master.”

(Emphasis added.) Not for mediation. Not for sugges-

tions. For resolution. The fact that the decree allowed the

parties to challenge the Special Master’s decisions in the

district court is further evidence that the Special Master

was intended to be a decisionmaker. For there to be

something to appeal from, the Special Master must have

had the power to make a decision.

MTA’s argument also is quite disingenuous. Previ-

ously, when it suited MTA’s purposes, it had claimed that

the decree gave the Special Master vast powers to decide

matters involving the parties. For example, when the

plaintiffs began to organize a fare strike against MTA in

retaliation for MTA’s noncompliance with the load factor

targets, MTA was only too happy to petition the Special

Master for a temporary restraining order to enjoin the

18a

strike. In arguing for the restraining order, MTA con-

tended that even though the consent decree was silent

about the Special Master’s power to issue a TRO to enjoin

a strike, the Special Master had broad powers unless

specifically limited by the decree. At that time, MTA

argued:

[T]he Special Master was appointed to monitor the

parties’ compliance with, and resolve any disputes aris-

ing under, the Consent Decree. The Consent Decree

does not impose any limitations on the Special Mas-

ter’s powers or authorities [sic] to effectuate these

objectives. Accordingly, the Special Master has inher-

ent authority to issue orders and resolve disputes

arising under the Consent Decree.

(Emphasis added.) Under the decree’s plain language, the

Special Master had the power to resolve disputes, subject

to appeal, and that is exactly what he did.

2. Scope and Intrusiveness of the Remedial Order

Finally, MTA raises federalism concerns regarding

the Special Master’s and district court’s remedial order.

Specifically, MTA contends that the order requires MTA

to violate state and federal environmental laws. We reject

this contention and find that the district court did not

abuse its discretion because (1) MTA consented to this

dispute resolution, (2) MTA had the opportunity to com-

ply with the Consent Decree but failed to do so, and (3)

the remedial order does not require a violation of state or

federal laws.

When imposing a remedial scheme on a state institu-

tion, a federal court must not unduly insert itself into the

_—————————————————E

19a

institution’s management. However, “federalism con-

cerns in institutional reform litigation . . .do not automat-

ically trump the powers of federal courts to enforce the

Constitution or a consent decree.” Stone, 968 F.2d at 861.

“[S]everal courts have held that federalism concerns do

not prevent a federal court from enforcing a consent

decree to which state officials have consented.” Id. at 861

n. 20 (citing United States v. City of Yonkers, 856 F.2d 444,

454 (2d Cir.1988), rev'd in part on other grounds sub nom.

Spallone v. United States, 493 U.S. 265, 110 S.Ct. 625, 107

L.Ed.2d 644 (1990); Allen v. Alabama State Bd. of Educ., 816

F.2d 575, 577 (11th Cir.1987); United States v. District of

Columbia, 654 F.2d 802, 808 & n. 11 (D.C.Cir.1981)). MTA’s

consent to this form of dispute resolution relieves many

federalism concerns.

Moreover, the remedial order does not violate the

general principle that “federal courts in devising a rem-

edy must take into account the interests of state and local

authorities in managing their own affairs.” Milliken v.

Bradley, 433 U.S. 267, 280-81, 97 S.Ct. 2749, 53 L.Ed.2d 745

(1977). MTA failed to comply with the Consent Decree

before there ever was a Special Master’s order. After

being found in violation of the Consent Decree, MTA had —

the opportunity to submit its own effective remedial

scheme. The Special Master made detailed findings, rea-

sonably concluded that MTA had submitted an inade-

quate remedial scheme, and meticulously fashioned the

remedial order.

Finally, the 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. However, failure to follow the

OOOO

20a

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 decision to lower the statutory

drinking age below twenty-one in spite of the federal law

that conditions receipt of federal funds on a drinking age

of twenty-one or older, 23 U.S.C. § 158. See South Dakota v.

Dole, 483 U.S. 203, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987).

The state might lose federal highway funds under federal

law, but it would not be in violation of that law. Thus, the

district court did not abuse its discretion.

The district court’s order is AFFIRMED.

CYNTHIA HOLCOMB HALL, Circuit Judge, dissent-

ing:

It is firmly established that, in tailoring a remedy,

“federal courts should ‘exercise the least possible power

adequate to the end proposed.’” Stone v. San Francisco,

968 F.2d 850, 861 (9th Cir.1992) (quoting Spallone v. United

States, 493 U.S. 265, 280, 110 S.Ct. 625, 107 L.Ed.2d 644

(1990)). Where the remedy is directed toward a state or

local governmental entity, the federal court also must

give “appropriate consideration . . . to principles of feder-

alism in determining the availability and scope of equita-

ble relief.” Rizzo v. Goode, 423 U.S. 362, 379, 96 S.Ct. 598,

46 L.Ed.2d 561 (1976); see also Stone, 968 F.2d at 860-61.

Federal courts “should always seek to minimize interfer-

ence with legitimate state activities in tailoring

remedies.” Id. at 860. Because I believe the district court

failed to fully account for these limitations on its reme-

dial authority, I respectfully dissent.

21a

The majority concludes that MTA’s consent to the

dispute resolution mechanism in the consent decree

“relieves many federalism concerns.” Supra at 1050. Some

courts have concluded that potential federalism problems

posed by a consent decree involving a state governmental

entity do not arise because the state entity has consented

to the provisions of the decree, thus “waiving” any feder-

alism objections. See Alan Effron, Federalism and Federal

Consent Decrees Against State Governmental Entities, 88

Colum. L.Rev. 1796, 1801 n. 31 (1988) (citing United States

v. City of Yonkers, 856 F.2d 444, 454 (2d Cir.1988), rev'd in

part on other grounds sub nom., Spallone v. United States, 493

U.S. 265, 110 S.Ct. 625, 107 L.Ed.2d 644 (1990); Allen o.

Alabama State Bd. of Educ., 816 F.2d 575, 577 (11th

Cir.1987); United States v. District of Columbia, 654 F.2d

802, 808 é& n. 11 (D.C.Cir.1981); Duran v. Carruthers, 678

FSupp. 839, 847, 852-53 (D.N.M.1988); see also Massa-

chusetts Ass’n for Retarded Citizens v. King, 643 F.2d 899,

904 (ist Cir.1981)). Other courts, however, have recog-

nized that the state entity’s consent to a consent decree

does not eliminate all federalism concerns, particularly

the federalism limitations on the power of a federal court

to intrude on matters of state governance. See Federalism

and Federal Consent Decrees, 1801 n. 32 & 33 (citing Kasper

v. Board of Election Comm'rs, 814 F.2d 332, 340-41 (7th

Cir.1987); Georgevich v. Strauss, 772 F.2d 1078, 1085 (3d

Cir.1985) (en banc); Duran v. Elrod, 713 F.2d 292, 297 (7th

Cir.1983); United States v. Michigan, 116 F.R.D. 655, 661

(W.D.Mich.1987)). Our own circuit has expressed skepti-

cism that a state’s consent to a consent decree eliminates

federalism concerns. See Stone, 968 F.2d at 861 n. 20 (“We

22a

hesitate to follow those cases that hold that the state

waives federalism objections when it enters a consent

decree because the state actors involved in th[e] case have

not clearly consented to the federalism intrusions.”).

Yet even if MTA’s consent to the decree eliminated

the federalism problems posed by the entry of the decree

itself, MTA’s consent does not extend to any and all

remedies ordered for MTA’s failure to comply with the

decree. MTA consented to the terms of the decree, includ-

ing the Load Factor Targets (“LFTs”) and the special

master’s role in resolving disputes. MTA did not, how-

ever, consent to the particular remedy ordered for its

failure to meet the LFTs. Although the terms of any

remedial order must be consistent with the terms of the

consent decree, it does not follow that the remedial order

is a part of the consent decree to which MTA consented.

Thus, to whatever extent MTA’s consent to the decree

eliminated the potential federalism problems posed by

the entry of the decree, MTA’s “waiver,” if any, of its

federalism objections does not extend to eliminate the

federalism problems raised by the remedial order.

Instead, the proper scope of the remedy in the instant

dispute over LFTs is governed by the principles in Rizzo

and Stone, and federalism concerns must be considered.

Federalism concerns also are not eliminated simply

by permitting MTA to submit a proposed remedy before

the court orders a remedy of its own. See supra at 1050.

State and local governments maintain a substantial inter-

est “in managing their own affairs,” even when a federal

court is forced to step in. Milliken v. Bradley, 433 U.S. 267,

280-81, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977). Merely

providing the state entity an opportunity to submit a

Bias eerie cen na ve Re ea neem areee cen areas:

23a

suggested remedy, which is then subject to substantial

alteration by the court, will not always satisfy that inter-

est. The court must take care that its remedy does not

interfere in the state entity’s legitimate activities any

more than is necessary to remedy the precise violation at

issue. See Spallone, 493 U.S. at 280, 110 S.Ct. 625.

Further, unlike MTA, federal courts are not in the

business of running and funding local transportation

systems. See Stone, 968 F.2d at 860 (recognizing that feder-

alism concerns include concerns of institutional compe-

tence). For this reason, a substantial measure of deference

to the local agency generally is appropriate. See id. at 863

(approving the numerous opportunities afforded the city

to formulate its own remedial plan and bring itself into

compliance with the decree). Unfortunately, in the instant

dispute, MTA put forward a remedial plan that was based

on data covering only 20 of the 79 bus lines at issue.

Because of MTA’s failure to prepare a plan that addressed

all of its LFT violations, the special master and district

court could not fully defer to MTA’s proposed plan.

Nonetheless, MTA’s failure to submit an adequate plan

does not relieve the district court from its obligation to

craft a remedy that is no more intrusive than necessary,

which, in my view, the court failed to do.

Il.

Before expanding its bus fleet, MTA is required by

statute to obtain numerous state and federal transporta-

tion and environmental approvals. See, e.g., 23 U.S.C.

§§ 103-05 (establishing eligibility and approvals required

for expenditure of National Highway System funds); 23

24a

U.S.C. § 134 (requiring a regional transportation planning

process and establishing requirements for expenditures of

funds in a Transportation Improvement Program); 23

U.S.C. § 149 (establishing eligible uses of Congestion

Mitigation and Air Quality Improvement Act funds); 49

U.S.C. § 5303, et seq. (requiring a regional transportation

planning process, establishing criteria to be used in the

planning process, and setting forth requirements for

expenditures of funds); see also 42 U.S.C. § 4321-4347

(National Environmental Policy Act). MTA also is

required to obtain certain approvals before making signif-

icant expenditures or before reprogramming funds from

one purpose to another. See, e.g., 49 U.S.C. § 5303, et seq.

For example, the Southern California Association of Gov-

ernments must first determine that the reallocation of

resources will not worsen the South Coast Air Basin’s air

quality before the amended expenditure can be approved,

and the new expenditures would also require the

approval of the Federal Highway Administration, the

Federal Transit Administration, and the Environmental

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

§ 5304(b) & (c). Other statutes require MTA to provide

reasonable public notice and allow the public a reason-

able opportunity to comment on the new purchases and

the shift in funds to buses from other programs. See, e.g.,

49 U.S.C. § 5304(d); Cal. Pub. Util.Code § 130106. The

only evidence before the special master and district court

regarding the time required to obtain the necessary

approvals was that it takes approximately six months for

the agencies to approve changes in the programming of

urban transportation funds and issue the necessary

25a

approvals. But the district court and special master nei-

ther gave MTA enough time to secure these approvals nor

made the remedy contingent upon obtaining them.

The special master dismissed MTA’s federal and state

law compliance concerns in a single paragraph:

The MTA expresses the further concern that environ-

mental statutes may pose obstacles to the implemen-

tation of the March 6 Memorandum Decision.

Statutory obligations such as the National Environ-

mental Policy Act (NEPA), the National Ambient Air

Quality Standards (NAAQS) and the California Envi-

ronmental Quality Act (CEQA) have always been an

important consideration in planning any transporta-

tion project in California. Generally, adding addi-

tional bus capacity to improve service quantity

should contribute positively to environmental qual-

ity. If despite the MTA’s good faith efforts to imple-

ment an approved remedial plan there are

unavoidable delays in complying with statutory

requirements, these issues should be addressed in

the quarterly reports.

The assumption that the bus purchases would improve

environmental quality is very much open to question,

given that the remedy was intended to increase the

number of buses on the streets in order to reduce the

number of standees among the existing ridership, not as

part of a program to lure people out of their cars and onto

public transportation, and the remedy may very well

require a shift in resources from electric light-rail to gas-

powered buses. Therefore, the special master had no

sound basis for assuming that the various state and fed-

eral approvals would be forthcoming. Further, the special

master’s argument that any failures in complying with

26a

federal law could be addressed at a later time was essen-

tially abrogated by the district court’s order that the new

buses be purchased immediately and that the temporary

buses be leased within 30 days and placed on the road

within 90 days. The only record evidence was that the

required approvals usually take six months to obtain.

Moreover, neither the special master nor the district court

addressed MTA’s statutory public comment obligations.

MTA could not consent away its governmental

powers and responsibilities or consent to override or

ignore its statutory obligations. Nor could a federal court

order MTA to override its statutory obligations, absent a

violation of a federal right, which has not been adjudi-

cated in this case. See, e.g., Cleveland County Ass'n for Gov't

by the People v. Cleveland County Bd. of Comm'rs, 142 F.3d

468, 477 (D.C.Cir.1998); Keith v. Volpe, 118 F.3d 1386, 1393

(9th Cir.1997). Compliance with the remedial order, how-

ever, would require MTA to violate its statutory obliga-

tions.

The majority concludes that MTA’s failure to comply

with its statutory obligations would not require it to

violate any federal laws because the obligations are part

of consensual funding programs. Supra at 1051. Although

correct, that statement addresses only part of the picture.

It is through such funding programs that MTA receives a

substantial portion of its funding. By failing to comply

with the statutory funding requirements, MTA risks

incurring heavy penalties and losing substantial federal

transportation funds. See, e.g., 49 U.S.C. § 5305(e). MTA

relies heavily on federal funds, and the loss of these

funds could prove crippling. See Revised Decl. of David

Yale (describing the sources of MTA’s funds); see also

27a

Cornelius v. Los Angeles County MTA, 49 Cal.App.4th 1761,

57 Cal.Rptr.2d 618, 628 (Ct.App.1996) (noting that in FY

1994-95, MTA received 29% of its revenues from the fed-

eral government). Moreover, such a loss is inconsistent

with the consent decree’s overall purpose to improve the

quality of bus service in Los Angeles. As this case demon-

strates, improved bus service requires substantial fund-

ing.

Further, if MTA “chooses” not to comply with the

“strings” attached to its receipt of funds and gives up the

funds, there is no evidence that MTA will otherwise be

able to purchase and operate the hundreds of new buses

ordered by the district court. Although there was evi-

dence before the court to support the conclusion that

MTA had not yet exhausted all possible sources of fund-

ing for new buses, that evidence also showed that MTA

would have to comply with various statutory obligations

in order to obtain those funds. There is no evidence in the

record that MTA could purchase and operate the new

buses without obtaining funds from programs that

require MTA to go through planning and approval pro-

cesses, the very same types of funding programs with

which the remedial order prevents MTA from complying.

There is no basis in the record for a remedial order that

would require MTA to purchase and operate new buses

without going through the steps necessary to allow MTA

to fund the new buses. On the contrary, MTA’s financial

constraints “are a legitimate concern of governmental

defendants in institutional reform litigation.” Rufo v.

Inmates of Suffolk County, 502 U.S. 367, 392-93, 112 S.Ct.

748, 116 L.Ed.2d 867 (1992).

28a

Beyond the unnecessarily intrusive nature of the

remedial order, that the order prevents MTA from com-

plying with the requirements of federal funding pro-

grams raises additional federalism problems. Congress

uses cooperative funding schemes such as those involved

here as a means of promoting federal policy. See New York

v. United States, 505 U.S. 144, 167, 112 S.Ct. 2408, 120

L.Ed.2d 120 (1992). Congress offers federal funds in

exchange for the state or local government’s compliance

with the federal policy and conditions that Congress

attaches to the use of the funds. See id. at 166, 112 S.Ct.

2408. The consensual nature of these schemes is precisely

the reason why their constitutionality is not open to

question. See generally South Dakota v. Dole, 483 U.S. 203,

107 S.Ct. 2793, 97 L.Ed.2d 171 (1987). Here, however, the

remedial order took that choice out of MTA’s hands and

in effect required MTA to take a certain position regard-

ing federal policy. Where the state or local government

unambiguously agrees to forego federal funds in the con-

sent decree itself, fewer federalism concerns arise; when

the state or local government agrees to the terms of the

consent Gecree, :t makes a choice to not participate in the

federal program. But where a federal court’s remedial

order prevatts participation in the funding scheme, the

state or local government is denied its choice. In taking

away that choice, the district court effectively shifts

power from the state to a single branch of the federal

government.

By taking the decision whether to comply with fed-

eral policy out of MTA’s hands, the district court also

raised troubling political accountability concerns. Making

decisions on how to allocate resources among competing

29a

interests generally is not the role of federal courts. Nor is

it the role of federal courts to make decisions on whether

a state or local governmental entity may participate in

and comply with federal environmental and transporta-

tion schemes. As the Supreme Court has noted, under

cooperative funding programs, “li]f a State’s citizens

view federal policy as sufficiently contrary to local inter-

ests, they may elect to decline a federal grant.” New York,

505 U.S. at 168, 112 S.Ct. 2408. But where a federal court

makes the choice, “elected state officials cannot regulate

in accordance with the views of the local electorate.” Id.

at 169, 112 S.Ct. 2408. Accountability thus is diminished

as the local officials “bear the brunt of public disap-

proval” while the federal court that made the decision

remains insulated. Id. These concerns are particularly

acute in the instant case because this suit arose against

the backdrop of a dispute between citizens who wanted

MTA to expand rail transportation and those who wanted

more buses. By ordering enormous expenditures on buses

while, at the same time, putting at risk a significant

portion of MTA’s funding, the district court added fuel to

the fire, but hampered MTA’s ability to respond.

MTA is not a private entity that has full discretionary

authority over its funding; MTA’s funds come with

strings attached. The district court could have granted

MTA sufficient time to comply with the state and federal

approval processes or could have made the remedy con-

tingent on MTA obtaining the required approvals.

Instead, the district court put MTA in the position of

either placing its funding at risk by purchasing buses

without obtaining the necessary approvals or risking con-

tempt of court by delaying its acquisition of buses while

30a

the approvals were acquired. In my view, the district

court failed to appreciate the unnecessarily intrusive

_ nature of the remedy and failed to give appropriate con-

sideration to federalism principles in fashioning relief. I

would reverse and remand the case to permit the district

court to craft a remedy that accounts for MTA’s financial

and statutory obligations. I therefore dissent.

3la

APPENDIX B

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LABOR/COMMUNITY STRATEGY )

CENTER; BUS RIDERS UNION; )

SOUTHERN CHRISTIAN ) No. 99-56581

LEADERSHIP CONFERENCE OF _ )

D.C. No.

GREATER LOS ANGELES )

COUNTY: KOREN IMMIGRANT CV-94-05936-TJH

WORKERS ADVOCATES; MARIA ) ORDER

CUARDADO; RICARDO ZELADA; ) — (Filed

NOEMI ZELADA; PEARL Y dea 4a neat

DANIELS,

Plaintiffs-Appellees,

and

HENRY FREDERICK RAMEY, JR.;

O. HOWARD WATTS; WILLIAM

TUT HAYES; VICTOR DIBAS

Plaintiffs-intervenors,

LOS ANGELES COUNTY

METROPOLITAN

TRANSPORTATION AUTHORITY,

Defendant-Appellant,

and

)

v. )

)

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,

_Defendants.__

32a

Before: BROWNING, HALL, and SILVERMAN, Circuit

Judges.

The panel has voted to deny appellant’s petition for

rehearing. Judge Silverman has voted to reject the peti-

tion for rehearing en banc and Judge Browning so recom-

mends. Judge Hall also recommends denial of the petition

for rehearing en banc and files an amended dissent.

The full court has been advised of the petition for

rehearing en banc and no active judge has requested a

vote on whether to rehear the matter en banc. Fed. R.

App. P. 35.

The petition for rehearing and the petition for rehear-

ing en banc are denied.

HALL, Circuit Judge, dissenting:

It is firmly established that, in tailoring a remedy,

“federal courts should ‘exercise the least possible power

adequate to the end proposed.’” Stone v. San Francisco,

968 F.2d 850, 861 (9th Cir. 1992) (quoting Spallone v. United

States, 493 U.S. 265, 280 (1990)). Where the remedy is

directed toward a state or local governmental entity, the

federal court also must give “appropriate consideration

... to principles of federalism in determining the avail-

ability and scope of equitable relief.” Rizzo v. Goode, 423

U.S. 362, 379 (1976); see also Stone, 968 F.2d at 860-61.

Federal courts “should always seek to minimize interfer-

ence with legitimate state activities in tailoring

remedies.” Id. at 860. Because I believe the district court

failed to fully account for these limitations on its reme-

dial authority, I respectfully dissent.

33a

The majority concludes that MTA’s consent to the

dispute resolution mechanism in the consent decree

“relieves many federalism concerns.” Supra at 21. Some

courts have concluded that potential federalism problems

posed by a consent decree involving a state governmental

entity do not arise because the state entity has consented

to the provisions of the decree, thus “waiving” any feder-

alism objections. See Alan Effron, Federalism and Federal

Consent Decrees Against State Governmental Entities, 88

Colum. L. Rev. 1796, 1801 n.31 (1988) (citing United States

v. City of Yonkers, 856 F.2d 444, 454 (2d Cir. 1988), rev'd in |

part on other grounds sub nom., Spallone v. United States, 493

U.S. 265 (1990); Allen v. Alabama State Bd. of Educ., 816

F.2d 575, 577 (11th Cir. 1987); United States v. District of

Columbia, 654 F.2d 802, 808 & n.11 (D.C. Cir. 1981); Duran

v. Carruthers, 678 F. Supp. 839, 847, 852-53 (D.N.M. 1988);

see also Massachusetts Ass'n for Retarded Citizens v. King,

643 F.2d 899, 904 (1st Cir. 1981)). Other courts, however,

have recognized that the state entity’s consent to a con-

sent decree does not eliminate all federalism concerns,

particularly the federalism limitations on the power of a

federal court to intrude on matters of state governance.

See Federalism and Federal Consent Decrees, 1801 n.32 & 33

(citing Kasper v. Board of Election Comm'rs, 814 F.2d 332,

340-41 (7th Cir. 1987); Georgevich v. Strauss, 772 F.2d 1078,

1085 (3d Cir. 1985) (en banc); Duran v. Elrod, 713 F.2d 292,

297 (7th Cir. 1983); United States v. Michigan, 116 F.R.D.

655, 661 (W.D. Mich. 1987)). Our own circuit has

expressed skepticism that a state’s consent to a consent

decree eliminates federalism concerns. See Stone, 968 F.2d

34a

at 861 n.20 (“We hesitate to follow those cases that hold

that the state waives federalism objections when it enters

a consent decree because the state actors involved in th[e]

case have not clearly consented to the federalism intru-

sions.”).

Yet even if MTA’s consent to the decree eliminated

the federalism problems posed by the entry of the decree

itself, MTA’s consent does not extend to any and all

remedies ordered for MTA’s failure to comply with the

decree. MTA consented to the terms of the decree, includ-

ing the Load Factor Targets (“LFTs”) and the special

master’s role in resolving disputes. MTA did not, how-

ever, consent to the particular remedy ordered for its

failure to meet the LFTs. Although the terms of any

remedial order must be consistent with the terms of the

consent decree, it does not follow that the remedial order

is a part of the consent decree to which MTA consented.

Thus, to whatever extent MTA’s consent to the decree

eliminated the potential federalism problems posed by

the entry of the decree, MTA’s “waiver,” if any, of its

federalism objections does not extend to eliminate the

federalism problems raised by the remedial order.

Instead, the proper scope of the remedy in the instant

dispute over LFTs is governed by the principles in Rizzo

and Stone, and federalism concerns must be considered.

Federalism concerns also are not eliminated simply

by permitting MTA to submit a proposed remedy before

the court orders a remedy of its own. See supra at 21. State

and local governments maintain a substantial interest “in

managing their own affairs,” even when a federal court is

forced to step in. Milliken v. Bradley, 433 U.S. 267, 280-81

(1977). Merely providing the state entity an opportunity

35a

to submit a suggested remedy, which is then subject to

substantial alteration by the court, will not always satisfy

that interest. The court must take care that its remedy

does not interfere in the state entity’s legitimate activities

any more than is necessary to remedy the precise viola-

tion at issue. See Spallone, 493 U.S. at 280.

Further, unlike MTA, federal courts are not in the

business of running and funding local transportation sys-

tems. See Stone, 968 F.2d at 860 (recognizing that federal-

ism concerns include concerns of institutional

competence). For this reason, a substantial measure of

deference to the local agency generally is appropriate. See

id. at 863 (approving the numerous opportunities

afforded the city to formulate its own remedial plan and

bring itself into compliance with the decree). Unfor-

tunately, in the instant dispute, MTA put forward a reme-

dial plan that was based on data covering only 20 of the

79 bus lines at issue?. Because of MTA’s failure to prepare

a plan that addressed all of its LFT violations, the special

master and district court could not fully defer to MTA’s

proposed plan. Nonetheless, MTA’s failure to submit an

adequate plan does not relieve the district court from its

obligation to craft a remedy that is no more intrusive than

necessary, which, in my view, the court failed to do.

1 In its petition for rehearing, MTA suggests that the

district court misinterpreted “load factor targets” by failing to

give this “technical term” its accepted meaning within the

transportation industry, and therefore the court applied the

wrong standard for determining the extent to which the consent

decree was violated in the first place. While the argument has

some appeal, unfortunately, MTA did not raise the argument in

its briefs to this court.

36a

Il.

Before expanding its bus fleet, MTA is required by

statute to obtain numerous state and federal transporta-

tion and environmental approvals. See, e.g., 23 U.S.C.

§§ 103-03 (establishing eligibility and approvals required

for expenditure of National Highway System funds); 23

U.S.C. § 134 (requiring a regional transportation planning

process and establishing requirements for expenditures of

funds in a Transportation Improvement Program); 23

U.S.C. § 149 (establishing eligible uses of Congestion

Mitigation and Air Quality Improvement Act funds); 49

U.S.C. § 5303, et seq. (requiring a regional transportation

planning process, establishing criteria to be used in the

planning process, and setting forth requirements for

expenditures of funds); see also 42 U.S.C. § 4321-4347

(National Environmental Policy Act). MTA also is

required to obtain certain approvals before making signif-

icant expenditures or before reprogramming funds from

one purpose to another. See, e.g., 49 U.S.C. § 5303, et seq.

For example, the Southern California Association of Gov-

ernments must first determine that the reallocation of

resources will not worsen the South Coast Air Basin’s air

quality before the amended expenditure can be approved,

and the new expenditures would also require the

approval of the Federal Highway Administration, the

Federal Transit Administration, and the Environmental

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

§ 5304(b) & (c). Other statutes require MTA to provide

reasonable public notice and allow the public a reason-

able opportunity to comment on the new purchases and

the shift in funds to buses from other programs. See, e.g.,

49 U.S.C. § 5304(d); Cal. Pub. Util. Code § 130106. The

37a

only evidence before the special master and district court

regarding the time required to obtain the necessary

approvals was that it takes approximately six months for

the agencies to approve changes in the programming of

urban transportation funds and issue the necessary

approvals. But the district court and special master nei-

ther gave MTA enough time to secure these approvals nor

made the remedy contingent upon obtaining them.

The special master dismissed MTA’s federal and state

law compliance concerns in a single paragraph:

The MTA expresses the further concern that

environmental statutes may pose obstacles to

the implementation of the March 6 Memoran-

dum Decision. Statutory obligations such as the

National Environmental Policy Act (NEPA), the

National Ambient Air Quality Standards

(NAAQS) and the California Environmental

Quality Act (CEQA) have always been an

important consideration in planning any trans-

portation project in California. Generally,

adding additional bus capacity to improve ser-

vice quantity should contribute positively to

environmental quality. If despite the MTA’s

good faith efforts to implement an approved

remedial plan there are unavoidable delays in

complying with statutory requirements, these

issues should be addressed in the quarterly

reports.

The assumption that the bus purchases would improve

environmental quality is very much open to question,

given that the remedy was intended *¢ increase the

number of buses on the streets in order c« reduce the

number of standees among the existing ridership, not as

part of a program to lure people out of their cars and onto

QQ EEE

38a

public transportation, and the remedy may very well

require a shift in resources from electric light-rail to gas-

powered buses. Therefore, the special master had no

sound basis for assuming that the various state and fed-

eral approvals would be forthcoming. Further, the special

master’s argument that any failures in complying with

federal law could be addressed at a later time was essen-

tially abrogated by the district court’s order that the new

buses be purchased immediately and that the temporary

buses be leased within 30 days and placed on the road

within 90 days. The only record evidence was that the

required approvals usually take six months to obtain.

Moreover, neither the special master nor the district court

addressed MTA’s statutory public comment obligations.

MTA could not consent away its governmental

powers and responsibilities or consent to override or

ignore its statutory obligations. Nor could a federal court

order MTA to override its statutory obligations, absent a

violation of a federal right, which has not been adjudi-

cated in this case. See, e.g., Cleveland County Ass’n for Gov't

by the People v. Cleveland County Bd. of Comm'rs, 142 F.3d

468, 477 (D.C. Cir. 1998); Keith v. Volpe, 118 F.3d 1386, 1393

(9th Cir. 1997). Compliance with the remedial order, how-

ever, would require MTA to violate its statutory obliga-

tions.

The majority concludes that MTA’s failure to comply

with its statutory obligations would not require it to

violate any federal laws because the obligations are part

of consensual funding programs. Supra at 21-22.

Although correct, that statement addresses only part of

the picture. It is through such funding programs that

MTA receives a substantial portion of its funding. By

39a

failing to comply with the statutory funding require-

ments, MTA risks incurring heavy penalties and losing

substantial federal transportation funds. See, e.g., 49

U.S.C. § 5305(e). MTA relies heavily on federal funds, and

the loss of these funds could prove crippling. See Revised

Decl. of David Yale (describing the sources of MTA’s

funds); see also Cornelius v. Los Angeles County MTA, 57

Cal. Rptr. 2d 618, 628 (Ct. App. 1996) (noting that in FY

1994-95, MTA received 29% of its revenues from the fed-

eral government). Moreover, such a loss is inconsistent

with the consent decree’s overall purpose to improve the

quality of bus service in Los Angeles. As this case demon-

strates, improved bus service requires substantial fund-

ing.

Further, if MTA “chooses” not to comply with the

“strings” attached to its receipt of funds and gives up the

funds, there is no evidence that MTA will otherwise be

able to purchase and operate the hundreds of new buses

ordered by the district court. Although there was evi-

dence before the court to support the conclusion that

MTA had not yet exhausted all possible sources of fund-

ing for new buses, that evidence also showed that MTA

would have to comply with various statutory obligations

in order to obtain those funds. There is no evidence in the

record that MTA could purchase and operate the new

buses without obtaining funds from programs that

require MTA to go through planning and approval pro-

cesses, the very same types of funding programs with

which the remedial order prevents MTA from complying.

There is no basis in the record for a remedial order that

would require MTA to purchase and operate new buses

without going through the steps necessary to allow MTA

40a

to fund the new buses. On the contrary, MTA’s financial

constraints “are a legitimate concern of governmental

defendants in institutional reform litigation.” Rufo v.

Inmates of Suffolk County, 502 U.S. 367, 1392-93 (1992).

Beyond the unnecessarily intrusive nature of the

remedial order, that the order prevents MTA from com-

plying with the requirements of federal funding pro-

grams raises additional federalism problems. Congress

uses cooperative funding schemes such as those involved

here as a means of promoting federal policy. See New York

v. United States, 505 U.S. 144, 167 (1992). Congress offers

federal funds in exchange for the state or local govern-

ment’s compliance with the federal policy and conditions

that Congress attaches to the use of the funds. See id. at

166. The consensual nature of these schemes is precisely

the reason why their constitutionality is not open to

question. See generally South Dakota v. Dole, 483 U.S. 203

(1987). Here, however, the remedial order took that

choice out of MTA’s hands and in effect required MTA to

take a certain position regarding federal policy. Where

the state or local government unambiguously agrees to

forego federal funds in the consent decree itself, fewer

federalism concerns arise; when the state or local govern-

ment agrees to the terms of the consent decree, it makes a

choice to not participate in the federal program. But

where a federal court’s remedial order prevents participa-

tion in the funding scheme, the state or local government

is denied its choice. In taking away that choice, the dis-

trict court effectively shifts power from the state to a

single branch of the federal government.

By taking the decision whether to comply with fed-

eral policy out of MTA’s hands, the district court also

: | Sere

4la

raised troubling political accountability concerns. Making

decisions on how to allocate resources among competing

interests generally is not the role of federal courts. Nor is

it the role of federal courts to make decisions on whether

a state or local governmental entity may participate in

and comply with federal environmental and transporta-

tion schemes. As the Supreme Court has noted, under

cooperative funding programs, “lijf a State’s citizens

view federal policy as sufficiently contrary to local inter-

ests, they may elect to decline a federal grant.” New York,

505 U.S. at 168. But where a federal court makes the

choice, “elected state officials cannot regulate in accor-

dance with the views of the local electorate.” Id. at 169.

Accountability thus is diminished as the local officials

“bear the brunt of public disapproval” while the federal

court that made the decision remains insulated. Id. These

concerns are particularly acute in the instant case because

this suit arose against the backdrop of a dispute between

citizens who wanted MTA to expand rail transportation

and those who wanted more buses. By ordering enor-

mous expenditures on buses while, at the same time,

putting at risk a significant portion of MTA’s funding, the

district court added fuel to the fire, but hampered MTA’s

ability to respond.

MTA is not a private entity that has full discretionary

authority over its funding; MTA’s funds come with

strings attached. The district court could have granted

MTA sufficient time to comply with the state and federal

approval processes or could have made the remedy con-

tingent on MTA obtaining the required approvals.

Instead, the district court put MTA in the position of

either placing its funding at risk by purchasing buses

42a

without obtaining the necessary approvals or risking con-

tempt of court by delaying its acquisition of buses while

the approvals were acquired. In my view, the district

court failed to appreciate the unnecessarily intrusive

nature of the remedy and failed to give appropriate con-

sideration to federalism principles in fashioning relief. I

would reverse and remand the case to permit the district

court to craft a remedy that accounts for MTA’s financial

and statutory obligations. I therefore dissent.

43a

APPENDIX C

United States District Court

Central District of California

Western Division

LABOR/COMMUNITY

STRATEGY CENTER, et al.,

Plaintiffs,

CV 94-5936 TJH (MCx)

Memorandum

V. Opinion and Order

)

LOS ANGELES COUNTY

METROPOLITAN ) (Filed Sep. 23, 1999)

TRANSPORTATION .

)

AUTHORITY, et al.,

Defendants.

Pursuant to the October 29, 1996, consent decree

entered in this case, the Los Angeles County Metro-

politan Transportation Authority [“MTA”] has asked the

Court to review the Special Master’s orders of March 6,

1999, and May 14, 1999.

In seeking review, the MTA raises several issues _

which can be consolidated into two. First, the Special

Master’s recommendations went beyond his powers and

the powers of the Court. Second, the Special Master’s

findings and recommendations are clearly erroneous.

44a

DISCUSSION

Authority of the Court and the Special Master

There should be no question that the Court and the

Special Master possess the equitable powers to enforce

the consent decree. This power stems not only from well-

established case law, but, also, from the terms of the

consent decree itself.

First, the consent decree clearly, and explicitly, states

that all disputes shall be submitted to the Special Master

for his resolution, and that the Special Master’s resolu-

tions may by reviewed by this Court. Given the complexity

of any plan to reduce bus overcrowding, the consensual

delegation of dispute resolution powers to the Special

Master was appropriate. Further, in the November 21,

1996, Stipulation and Order of Reference, the MTA speci-

fically, and unequivocally, empowered the Special Master

to resolve disputes arising out of the consent decree.

Second, the MTA is estopped from asserting that the

Special Master’s authority is very narrow and finite.

“Judicial estoppel, sometimes also known as the doctrine

of preclusion of inconsistent positions, precludes a party

from gaining an advantage by taking one position, and

then seeking a second advantage by taking an incompat-

ible position.” Rissetto v. Plumbers and Steamfitters Local

343, 94 F.3d 597, 600-1 (9th Cir. 1996). When the MTA

asked the Special Master to issue an injunction to prohibit

Plaintiff Bus Riders Union [“Bus Riders”] from encourag-

ing a “No Seat, No Fare” strike, the Bus Riders argued

that the Special Master lacked the explicit power to issue

such an injunction. In response, the MTA argued that the

Special Master’s powers were very broad and implicitly

| |

EE EO ee ee

45a

encompassed the authority to issue the injunction. Now

that the MTA disfavors the Special Master’s decision on a

matter which he was explicitly empowered to resolve, the

MTA makes a frontal attack on his authority. The MTA is

estopped from doing so.

Third, a consent decree is a permanent injunction

enforceable by the Court. See Local 93, Int’l. Ass'n. of

Firefighters v. Cleveland, 478 U.S. 501, 517-18, 106 S. Ct.

3063, 3072-73, 92 L. Ed. 2d 405, 420-21 (1986). Generally,

this Court has broad equitable remedial powers to

enforce injunctions. See Swann v. Charlotte-Mecklenburg Bd.

Of Educ., 402 U.S. 1, 15, 91 S. Ct. 1267, 1275, 28 L. Ed. 2d

554, 566 (1971). Moreover, a remedial scheme embodied

in a consent decree maybe even broader than a court-

created equitable remedy after a trial on the merits. Local

93, 478 U.S. at 525, 106 S. Ct. at 3076, 92 L. Ed. 2d at 425

(1986). Furthermore, contrary to the MTA’s contention,

the enforceability of a consent decree is not dependant

upon a prior determination of a constitutional violation.

See Stone v. San Francisco, 968 F.2d 850, 862, n.20 (9th Cir.

1992).

By the clear language of the consent decree, the MTA

had the initial responsibility to devise and implement a

plan to reduce bus overcrowding. Since the MTA failed to

meet the obligations imposed by the consent decree, it is

now up to the Special Master and the Court - through the

Court's equitable powers - to enforce the consent decree.

See Hutto v. Finney, 437 U.S. 678, 687, 98 S. Ct. 2565, 2572,

57 L. Ed. 2d 522, 532 (1978).

Standard of Review

In non-jury matters - such as the equitable enforce-

ment of a consent decree - the Court must accept the

Special Master’s findings unless they are clearly erro-

neous. Fed. R. Civ. P. 53(e)(2). This is in accord with the

terms of the consent decree which clearly states that this

Court may only review the Special Master’s resolutions

of disputes between the MTA and the Bus Riders.

Findings are clearly erroneous “when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm convic-

tion that a mistake has been committed.” United States v.

United States Gypsum Co., 333 U.S. 364, 395, 68 S. Ct. 525,

542, 92 L. Ed. 746, 766 (1948). If the Special Master’s

findings are “plausible in light of the record viewed in its

entirety [the Court] may not reverse [the Special Master]

even though convinced that had it been sitting as the trier

of fact it would have weighed the evidence differently.”

Anderson v. Bessemer City, 470 U.S. 564, 574, 105 S. Ct.

1504, 1511, 84 L. Ed. 2d 518, 528 (1985).

Review of the Special Master’s Orders

Given the detailed findings of the Special Master, and

the evidence in support of his findings, the Court does

not have a firm conviction that the Special Master made a

mistake in determining that the MTA has not substan-

tially complied with the consent decree in that the target

load factor of 1.35 has not been met. Therefore, the Spe-

cial Master’s findings regarding compliance with the con-

sent decree were not clearly erroneous.

47a

As to the Special Master’s remediation plan, it is

affirmed as follows:

1. The Special Master’s determination that 248 addi-

tional buses are needed, and must be purchased

immediately, to resolve “insufficient capacity”

violations so as to meet the 1.35 target load factor

that should have been met by December 31, 1997,

is affirmed. The MTA shall, within thirty days,

through lease or other means, obtain 248 buses

on a temporary basis until the 248 purchased

buses arrive.

2. Given the apparent increased reliability of the

MTA’s current fleet, the Special Master shall

reconsider whether the additional 49 buses he

ordered the MTA to purchase for spares are still

needed.

3. The Court believes that it is too early to deter-

mine whether the MTA is incapable of meeting

the 1.25 target load factor by June 30, 2000, given

the current progress apparently made by the

MTA and the age of the point check data pre-

sented to the Special Master and the Court.

Therefore, the Special Master shall re-evaluate

the likelihood of the MTA meeting the 1.25 target

load factor after he is presented with more up-to-

date point check date. The Special Master shall

evaluate the data using both static twenty minute

periods and non-overlapping, sliding twenty

minute periods. The Special Master shall use

whichever calculation method that most accu-

rately reflects the actual level of overcrowding

experienced by bus riders.

As the Special Master reconsiders and re-evaluates

the above items, he should consider, with the input of the

Joint Working Group, the MTA and the Bus Riders, other

48a

capacity increasing measures beyond the purchase of

additional buses. For example, the Special Master should

- consider the movement of buses from less crowded lines

to more crowded lines, and the possibility of reducing or

eliminating MTA service to those municipalities served

by the sixteen municipal bus lines that offer overlapping

service to the service provided by the MTA.

The Special Master’s orders are affirmed as to all

other findings and determinations.

It is so ordered.

Date: September 23, 1999

/s/ Terry J. Hatter, Jr.

Terry J. Hatter, Jr.

Chief United States District

Judge

49a

United States District Court

Central District of California

Western Division

LABOR/COMMUNITY

STRATEGY CENTER, et al.,

Plaintiffs,

CV 94-5936 TJH (MCx)

)

) Order

LOS ANGELES COUNTY }

)

METROPOLITAN (Filed Oct. 6, 1999)

TRANSPORTATION

AUTHORITY, et al.,

Defendants.

)

The Court has considered Plaintiffs’ ex parte applica-

tion to stay the Court’s order of September 23, 1999,

togethe: with the moving and opposing papers.

It is Ordered that the application be, and hereby is,

Denied.

It is further Ordered, sua sponte, that lines 18-20 of

page 4 of the September 23, 1999, order be, and hereby

are, Amended as follows:

. .. The MTA shall, by November 5, 1999, con-

tract to obtain 248 buses on a temporary basis

until the 248 purchased buses arrive. The 248

temporary buses shall be placed into operation no

later than January 3, 2000.

Date: October 6, 1999

/s/ Te . Hatter, Jr.

Terry ; Hatter, r:

Chief United States District

Judge

50a

APPENDIX D

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

PROCEEDING BEFORE SPECIAL MASTER

LABOR/COMMUNITY )

STRATEGY CENTER, et al., )

es ) CASE NO. CV

Plaintiffs, ) 94-5936 TJH (MCx)

vs. ) IN RE LOAD

LOS ANGELES COUNTY ) FACTOR

METROPOLITAN ) COMPLIANCE

TRANSPORTATION )

AUTHORITY and JULIAN)

BURKE,

Defendants. )

)

MEMORANDUM DECISION AND ORDER

I. INTRODUCTION

The issue presented to the Special Master for resolu-

tion is fairly straightforward; what steps are necessary to

bring the MTA into compliance with the load factor

requirements of the Consent Decree? The resolution of

this issue, however, is costly and complex. Under the

Consent Decree entered into by the parties and approved

by the Court on October 29, 1996, the MTA undertook to

make significant service improvements to the bus system,

including “reducing overcrowding by adding new ser-

vice.” See Consent Decree at II.A (hereinafter “Consent

5la

Decree” or “Decree”). To accomplish this, the MTA

agreed to a five-year timetable reducing the amount of

overcrowding on buses as measured by a “load factor” -

a specific ratio of bus passengers to bus seats. The

achievement of this five-year [illegible] was to be accom-

plished in the following increments (“load factor target”

or “LFT”):

December 31, 1997: 1.35

June 30, 2000: 1.25

June 30, 2002: 1.20

Thus, achieving the load factor of 1.35 would mean, inter

alia, that during any 20-minute weekday peak period in

the peak direction of travel on each bus line, the average

number of passengers standing would not exceed 15. To

meet the 1.25 load factor target, the average number of

passengers standing during any 20-minute weekday peak

period would not exceed 11 and to meet the final load

factor target of 1.20, the average number of standing

passengers during any 20-minute peak period would not

exceed 9 passengers. Id.

If the MTA fails to meet the target load factors for all

bus lines by the dates specified above, the Consent

Decree provides that “MTA shall meet the target as soon

as possible and reallocate sufficient funds from other

programs to meet the next lower load factor target as

scheduled.” See Consent Decree at II.A.4 (“Failure to

Meet Targets”). The Consent Decree requires that the

MTA reprogram funds, which may include, but not be

limited to, revenues from Propositions A and C discre-

tionary funds, to meet the load factor targets. Any dis-

pute about whether the targets are met or, if they are not

52a

met, whether sufficient funds have been reprogrammed

to meet the next target is to be reviewed by the Joint

Working Group (“JWG”), established pursuant to Section

_ IV of the Consent Decree, and consisting of representa-

tives of the MTA and the Plaintiffs’ class. If the JWG

cannot resolve the matter, it will be referred to the Special

Master. See Consent Decree at II.A.4.

On September 9, 1998, after having received guidance

from the Special Master concerning the legal standards by

which compliance is to be measured, the JWG agreed that

the MTA did not meet the December 31, 1997 load factor

target of 1.35 for 75 out of the 79 monitored bus lines.

These bus lines had been selected for monitoring pur-

suant to a plan devised by the JWG and previously

reviewed by the Special Master.

Since September 9, 1998, the JWG has met on a

number of occasions to exchange information concerning

the causes of the failure of the MTA to meet the load

factor target and to consider the remedies that would be

appropriate to bring the MTA into compliance with the

load factor requirements of the Consent Decree. Through

this process, an enormous amount of information and

analysis has been generated which is part of the Adminis-

trative Record in this proceeding and provides the foun-

dation for this decision. While the JWG was able to agree

that the MTA had not met the target load factors, the JWG

was not able to agree on an appropriate remedial plan.

Therefore, each party prepared and presented to the Spe-

cial Master a remedial plan providing its analysis of the

causes of the MTA’s failure to achieve the load factor

targets and the proposed actions necessary to address

those causes.

53a

While there are some areas of agreement, the reme-

dial plans presented by the MTA and the Plaintiff Class

are far apart on a number of critical issues. Thus, pur-

suant to Section IV.A.4 of the Consent Decree, it is incum-

bent upon the Special Master to resolve the matter.

The specific task before the Special Master — and the

purpose of this Memorandum Decision and Order - is to

determine what remedial steps the Decree requires to

achieve compliance with the 1.35 load factor target of

December 31, 1997 “as soon as possible” and “to meet the

next lower load factor target” of 1.25 by June 30, 2000. See

Consent Decree at II.A.4.

In reaching a decision, I have reviewed the remedial

plans submitted by the MTA and the Bus Riders Union

(“BRU”), the briefs, reply briefs, declarations and exhibits

submitted by counsel to the MTA and the BRU, and the

Administrative and Supplemental Administrative Record

jointly submitted by the parties. Having considered all of

these data and analysis, I have adapted elements from

each of the parties’ plans in fashioning a “narrowly tai-

lored” remedial plan that, in my best judgment, will meet

the specific requirements of the Consent Decree. The

specific elements of this remedial plan are set forth on

pages 52-56 of this Memorandum Decision and Order.

Pursuant to Section V.B of the Consent Decree, any

matter resolved by or referred to the Special Master may

be reviewed by the United States District Court, Central

District of California, Western Division, along with the

recommendations of the Special Master, if any, upon

motion by either of the parties. If either or both parties

. file such a motion, the entire Administrative Record,

54a

including this Memorandum Decision and Order, will be

submitted to the Honorable Terrence J. Hatter.

Il. BACKGROUND

In September 1994, the Community Legal Strategy

Center, together with the Bus Riders Union, other com-

munity organizations and the named Plaintiffs (hereinaf-

ter “Plaintiffs” or “BRU”) brought a lawsuit against the

MTA on behalf of the class of predominantly minority,

transit-dependent bus riders in Los Angeles County seek-

ing declaratory and injunctive relief under, inter alia, the

Fourteenth Amendment and Section 6 of the Civil Rights

Act of 1964. The Plaintiffs challenged the allegedly dis-

criminatory and disparate impact of the MTA’s decisions

to increase bus fares, cut bus passes and divert funds

from the bus system, which serves 94% of the transit-

dependent riders of Los Angeles County, in order to

finance and construct a subway and light rail system.

After many months of discovery and within a few weeks

of trial, the parties agreed to settle the litigation and a

Consent Decree was approved by the Court on October

29, 1996. ;

A. Major Components of the Consent Decree.

1. Fare Provisions.

The Consent Decree contains three major compo-

nents. First, the Decree provides for a freeze on fares until

November 1998, with an allowance for inflationary

increases thereafter. See Consent Decree at III. In addi-

tion, the Decree retains the monthly and bi-weekly passes

55a

and creates a new weekly pass set at $11.00. These provi-

sions were implemented with relatively little controversy

and the objectives and benefits of the Consent Decree in

this area have been for the most part successfully

achieved. Moreover, although the MTA has been autho-

rized to provide for an inflationary increase in the bus

fares since November 1998, it has not done so and, appar-

ently, has not initiated any of the formal steps required to

do so.

2. Load Factor Reduction Program.

The second major component of the Consent Decree — -

a program for the reduction of bus overcrowding as

measured by load factor targets —- has not fared so well.

As stated above, the Decree requires the MTA to provide

for significant improvements in bus service, to be mea-

sured by the achievement of specific load factor reduction

targets over a five-year peric’. The MTA’s failure to

achieve the load factor target established by the Decree is

what necessitates the present Decision. The pertinent his-

tory is as follows.

On May 1, 1998, the Plaintiffs filed a motion with the

Special Master seeking to consolidate the informal Stage I

and formal Stage II proceedings and proceed directly to a

determination of whether the MTA was in compliance

with the Consent Decree and, if not, what remedy would

be appropriate. The MTA opposed the motion, proposing

informal consultations.

56a

On May 28, 1998. the Special Master issued a

Procedural Order gra**ng the Plaintiffs’ motion to con-

solidate Stage I and Stage II proceedings and requesting

that the parties clarify the outstanding issues to be

resolved. In their written submissions to the Special Mas-

ter and at a June 24 status conference, it was apparent

that the parties held substantially different views as to

how Section II of the Consent Decree should be inter-

preted and applied, and that these foundational conflicts

needed to be resolved as a threshold matter before the

issue of compliance could be determined. Accordingly,

the parties were directed to brief the foundational legal

question (and various related sub-issues) concerning the

proper standard by which to measure compliance with

Section II of the Consent Decree.

In its brief, the MTA contended that compliance

under the Decree should be measured by a comparison of

the MTA’s overall system-wide load factor compliance

rate, per time period, with the industry-wide percentage

of service interruptions. In connection with this inter-

pretative proposal, the MTA argued that the load factor

should be computed using fixed, 20-minute periods. Con-

versely, the Plaintiffs argued that the Consent Decree

requires compliance to be measured on each and every

bus route, using a sliding window for “any 20 minute

period.” Plaintiffs further argued that the MTA had

breached the Consent Decree by failing to procure an

additional 102 buses, as required by Section II.B. Opening

Brief of Plaintiffs and Plaintiff’s Class (filed July 8, 1998);

MTA’s Brief Re Load Factor Compliance Standard (filed

July 8, 1988).

57a

The Special Master issued a Memorandum Decision

and Order on July 15, 1998, rejecting the MTA’s system-

wide interpretation of Section II of the Consent Decree

and, instead, holding that Section II of the Decree

requires that the load factor targets be met on each and

every bus line. The Special Master adopted the MTA’s

position on the “20-minute” measure and also noted that

there may be de minimis exceptions to requirements that

the MTA meet the LFT on every bus line for every 20-

minute period. Memorandum Decision and Order (filed

July 15, 1998).

On August 14, 1998, the Plaintiffs moved for recon-

sideration of the Special Master’s decision on the issues

relating to the 20-minute period, by-passed passengers, de

minimis exceptions, and the procurement of an additional

102 buses. Plaintiff’s Motion for Reconsideration of the

Special Master’s Memorandum Decision, and Motion to

Strike Inadmissible Extrinsic Evidence (filed Aug. 14,

1998).

Upon completion of the briefing, the Special Master

issued an Order on August 25, 1998, granting the Plain-

tiffs’ motion in part and denying the motion in part.

Order Re Plaintiffs’ Motion for Reconsideration of the

Special Master (dated July 15, 1998); Order Re Compli-

ance Standards (dated Aug. 25, 1998). The Special Master

adopted the Plaintiffs’ definition of “any non-overlapping

sliding 20-minute period” as the proper measurement of

compliance and deferred consideration of de minimis

exceptions until a later stage in the proceeding. On the

issue of the additional 102 buses, the Special Master

reaffirmed his earlier decision that Section II.B of the

58a

Consent Decree did not mandate the immediate procure-

ment of 102 additional new buses by July 1997.1 The

Special Master deferred consideration of when the addi-

tional new buses must be acquired until the remedial

phase of the load factor compliance proceeding.

Having clarified the legal standards applicable to

compliance under the Decree, the Special Master directed

the JWG to reconvene to determine whether the MTA was

in compliance with the load factor targets for each bus

line and, if not, to consider appropriate remedies. On

September 8 and 9, 1998, the JWG found that the MTA

was not in compliance with the 1.35 LFT for 75 out of the

79 monitored MTA bus lines. Letter to Special Master

from Habib F. Balian (dated September 8, 1998); Letter to

Special Master from Eric Mann (dated Sept. 9, 1998).

While valuable information and analysis were devel-

oped and exchanged by the parties, and although a

number of discussions on proposed remedial actions

were held, the JWG failed to reach agreement on a reme-

dial plan. Despite this impasse, the parties requested the

opportunity to establish confidential procedures for the

purpose of developing and exchanging proposed reme-

dial plans in the hope of facilitating settlement and agree-

ment on areas of difference.

The proposed plans were exchanged on December 11,

1998 and discussed in an informal conference held in Los

Angeles on December 18, 1998. At the conclusion of the

| 1 The MTA temporarily satisfied this requirement by

extending the life of buses scheduled for replacement and used

the replacement vehicles to add service.

59a

informal discussions, the Plaintiffs indicated to the Spe-

cial Master that there was no prospect of reaching an

agreement on the remedial plan and requested additional

discovery concerning the basis for the MTA’s proposed

remedial plan. The Special Master approved the parties’

proposed procedures for additional, limited discovery

and granted their request for a postponement of a brief-

ing schedule on the merits. Procedural Order (dated Dec.

16, 1998). Briefing on the merits of the proposed remedial

plans was completed on February 13, 1999, and the issue

of a remedial plan was thus referred to the Special Master

for decision.

3. Development of a Five-Year Plan.

The third major component of the Consent Decree

involves the development of a five-year plan, as set forth

in Section II.C.2, providing for additional bus and other

transit services designed to improve access to employ-

ment opportunities, health care facilities and educational

centers for the transit-dependent. To this end, the Decree

requires the MTA to implement, after consultation with

the JWG, a pilot project to demonstrate the feasibility of

providing added service to achieve this objective. The

JWG failed to reach agreement on a five-year plan by the

deadline of December 31, 1998. At the direction of the

Special Master, the parties submitted separate five-year

plans on February 21, 1999. As the MTA notes in its

Opening Brief, compliance with this provision of the Con-

sent Decree may require the MTA to acquire additional

buses to implement the five-year plan.

60a

B. Role of the Joint Working Group.

At the time the Consent Decree was agreed upon by

the parties and approved by the Court, it was impossible

to fashion in great detail all of the specific actions that

would be necessary to achieve the goals, objectives and

spirit of the Decree. Accordingly, the JWG, consisting of

representatives of both the MTA and the Plaintiffs, was

established for the purpose of working together to fill in

the details and realize the benefits of the Consent Decree

for the transit-dependent population -— a goal shared by

the Plaintiffs and the MTA. The JWG has met on many

occasions and in many ways has been a thoughtful forum

for the exchange of information and ideas. Despite the

controversies that have flared up, the JWG has developed

a substantial amount of valuable information that has

been used to improve the quality of bus service.

It has been disappointing, however, that the JWG has

not been able to resolve many of the major issues in

dispute. This is unfortunate because it requires the Spe-

cial Master to step in and substitute his judgment for the

expertise of the MTA staff, the BRU staff and their expert

consultants. who are very knowledgeable about the bus

system and are capable of designing solutions to prob-

lems arising under the Consent Decree. Nonetheless, all

the MTA’s “horses” and all the BRU’s “men” (and

women) have not been able to put together an agreed-

upon remedial plan, which was clearly the desired course

under the Consent Decree. Consequently, the obligation

to resolve these areas of conflict under the Decree is now

thrust upon, at least in the first instance, the Special

Master.

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If it has taken more time than we all would have

wished to get to this point, it is because I strongly believe

that it is important that the JWG be given every incentive

and opportunity to resolve as many of the disputes as

possible. Moreover, the data and analysis that have

resulted from these deliberations have been a critical part

of the analytical foundation for a remedial plan that

meets the Consent Decree’s requirements. Most impor-

tantly, the parties have not merely passed the time col-

lecting and reviewing information; rather, they have

taken a number of critical and concrete steps to improve

the MTA’s capacity to adhere to the requirements of the

Consent Decree. For example, in January 1998, construc-

tion of the Eastside, Mid-Cities and Pasadena rail-lines

was suspended, thus conserving some transit capital and ©

management resources for bus improvements.” In Octo-

ber, an accelerated bus procurement plan was approved

that commits the MTA to purchase 2095 buses at a cost of

$817.3 million and will reduce the average age of the fleet

to about six years within the next two and one-half years.

Purchase orders have been executed for 538 new buses to

be delivered before June 2000 and plans have been

approved to convert or repair 917 “unreliable” alternate

fuel buses by the end of the year.

In sum, both parties have undertaken an extraordin-

ary amount of work to develop the analytical foundation

2 Plaintiffs contend that the MTA has not actually

reallocated any of these resources to improve the bus system

and plans to provide substantial resources to the Pasadena Blue

Line. Reply Brief for Plaintiffs and the Plaintiff Class at 2 n.2

(Filed Feb. 16, 1999) (“BRU Rep. Br.”).

62a

for a remedial plan that addresses the causes of bus

overcrowding. Because the parties have failed to reach

agreement, however, it is now incumbent upon the Spe-

cial Master to determine what specific steps are needed to

achieve compliance with the dictates of the Consent

Decree.

Ill. POSITIONS OF THE PARTIES ON THE PROPOSED

LOAD FACTOR REMEDIAL PLANS

For the most part, the information relied upon by the

parties in the preparation of their remedial plans has

been developed by the MTA and the BRU through the

cooperative efforts of the JWG. Thus, there exists a com-

mon source of data that both parties generally accept.

Both parties have undertaken a thoughtful analysis of

these data and, while they agree on certain points, they

have reached widely different conclusions on the causes

of, and remedies for, the MTA’s load factor noncom-

pliance. .

Significantly, both parties agree that approximately

half of the incidents of load factor exceedence are attribu-

table to “missing buses” — buses that are in the active

fleet and scheduled for service, but are unable to provide

service on a particular run because they are not operable,

the driver is not available, or the bus experiences in-

service failure. The parties also agree that most of the

load factor exceedence attributable to missing buses is a

result of the poor reliability of an aging bus fleet and a

fleet which has experienced substantial mechanical diffi-

culties with the use of alternative fuel vehicles. MTA’s

Opening Brief Re Load Factor Reduction Plan at 5-6 (filed

63a

Feb. 8, 1999) (“MTA Br.”); Bus Riders Union Remedial

Plan for Meeting Load Factor Requirements of Federal

Consent Decree at 3-4 (filed Dec. 11, 1998) (“BRU Reme-

dial Plan”).

The parties disagree, however, on the other 50% of

the causes of load factor exceedence. The MTA believes

that 29% of these LFT exceedences are attributable to

poor schedule adherence - the fact that a bus arrives

early or late and therefore creates overcrowding situa-

tions that a properly managed schedule would avoid. The

MTA believes that the remaining 19% is attributable to an

insufficient number of buses on the routes. The BRU, on

the other hand, believes that 50% to 60% of the causes of

overcrowding is attributable to insufficient capacity and

that poor schedule adherence is negligible as a cause of

overcrowding. Chart A provides a comparison of the

causes of overcrowding as analyzed by the MTA and

Plaintiffs.

Since the MTA and the Plaintiffs disagree about at

least half the universe of load factor exceedence, it is

perhaps not surprising that they also differ considerably

on the remedies that are needed to address these causes.

Charts B and C provide a comparison of these proposed

remedies. The following subsections summarize the

respective positions of the parties, which are set forth

more completely in their briefs and proposed plans.

A. The MTA’s Causal Analysis and Proposed Reme-

dial Plan

In order to determine the causes of its load factor

exceedences, the MTA has undertaken an analysis of

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point check data compiled during 1998 on the 20 highest

ridership bus lines and reviewed historical reports on

cancelled daily bus runs and service delays. MTA

Br. at 3.3 The MTA staff used these data to prepare

spreadsheets detailing each instance of overcrowding as a

basis for analysis of the primary cause of each instance of

overcrowding. The MTA concluded that of the 1,369

instances of overcrowding observed in 1,424 point checks,

missing trips accounted for more than one-half of all

occurrences (51.7%). Id. at 5. Poor schedule adherence

was found to be the primary cause of 29.1% of the

observed overcrowding. Id. Insufficient capacity (i.e., not

enough buses) was the primary cause of the remaining

19.2% of all instances where the LFT was exceeded. Id.

The MTA’s remedial plan is designed to allocate resources

to address these causes of overcrowding proportionately.

1. Missed trips.

As noted above, the MTA attributes 51.7% of

instances of overcrowding to “missed trips.” Under the

MTA’s analysis, “missed trips” include: (1) trips that were

scheduled but missed because the bus was not able to

provide service for any number of reasons; (2) trips that

were missed due to the unavailability of an operator; and

(3) trips that were missed due to an incident occurring

while the bus was in service (e.g., “in service failure”).

MTA Br. at 5-6. “In service failures” include mechanical

3 Trained MTA and BRU personnel conduct “point checks”

by counting the number of bus passengers standing when a bus

arrives at a designated bus stop.

65a

breakdowns, accidents, passenger incidents, traffic

-delays, and other events that can cause a scheduled bus

not to complete its assigned route.

The MTA points out that in its continued effort to

improve air quality in Southern California — an issue of

enormous concern in the Los Angeles basin - it has

acquired alternative fuel buses that do not have the dem-

onstrated record of reliability that more traditional diesel-

powered buses have developed over the years. Id. at 6.

The MTA notes the following problems with its alternate

fuel buses that have substantially decreased the reliability

of its peak fleet: (1) some 300 buses, most of them alco-

hol-fueled, are not currently in use due to engine failure,

(2) 594 compressed natural gas (CNG) buses have exhib-

ited substantial reliability problems, and (3) due to the

problems encountered with the reliability of new alter-

nate fuel buses, the MTA has retained some 910 buses in

the fleet that exceed the 12-year age for planned retire-

ment. Id. The MTA’s plan addresses the first sub-category

of missed trips, the unavailability of equipment, by

improving the availability of buses through warranty

defect corrections, engine replacements, improved main-

tenance, and the acquisition of more modern, reliable

equipment. The MTA proposes the following specific

steps to address the missed trips cause of load factor

exceedence that is attributable to the lack of an operable

bus. See Id. at 7-14.

(a) Accelerated replacement plan.

The MTA Board of Directors has recently adopted an

accelerated bus procurement plan to provide for 1,237

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new buses over the next three fiscal years (through FY02).

MTA Br. at 7. One-half of these buses will be delivered

within the next 18 to 24 months. Id. The MTA’s replace-

ment schedule for fiscal year 1998 through fiscal year

2004 provides for the accelerated procurement of 2,095

buses, which constitute 782 buses over and above what

had initially been planned for this period at the time the

Consent Decree was approved. Id. at 8.4 The additional

cost is almost $300 million. Id. This accelerated program

is intended to improve the condition of MTA’s fleet and

thereby reduce the number of missed trips due to the lack

of operable equipment. It also is intended to reduce the

number of missed trips due to service failures or bus

breakdowns.

4In December 1998, MTA completed a contract with

Neoplan for the acquisition of 100 high-floor CNG buses. The

delivery of these buses is scheduled to begin in March 1999. Id.

at 8. In October 1997 the MTA entered into a contract with New

Flyer for the acquisition of 223 high-floor CNG buses. Id. These

buses are expected to be delivered starting in July 1999. Id. In

October 1998, the MTA entered into a contract with NABI for the

acquisition of 215 low-floor CNG buses, and delivery for these

buses is scheduled to begin in December 1999. Id. The

acquisition of these 538 buses, which are expected by June 2000,

will decrease the average age of the MTA fleet from nine and

one-half years to approximately six years. Id. In addition, in

August 1998, the MTA purchased 20 New Flyer low-floor buses

from ATC/ Vancom of Las Vegas. Id. at 10. These buses were put

into service on November 11, 1998. Id.

67a

(b) Conversion of ethanol buses.

The MTA contends that an additional cause of

“missed trips” can be attributed to the extreme unre-

liability of the approximately 333 ethanol buses, which

the MTA purchased between 1989 and 1°92. MTA Br. at 9.

The MTA asserts that, in the later years of operation,

alcohol engines have failed at an average of 30,000 miles

compared to 120,000 miles between failures for compara-

ble diesel engines. Id. To remedy these problems, the

MTA has begun to convert the ethanol buses to diesel at

the rate of 15 buses per month, and plans to complete the

conversion program by December, 1999. Id. The MTA has

found that the buses converted to diesel so far have

demonstrated significant improvement in their perfor-

mance. Id.

buses. |

According to the MTA’s analysis, correction of war-

ranty defects will also serve to address the problem of

“missed trips.” MTA Br. at 10. The CNG fleet of buses has

experienced fuel tank failures, bus fires, and problems

with a variety of engine and fuel-system-related compo-

nents. Id. The MTA has worked with the manufacturer to

develop protection shields for installation under the fuel

tanks and heat wraps to protect the buses from catching

on fire should the exhaust system malfunction. Id. The

bus manufacturer is expected to complete retrofit work

on the buses to improve their reliability and performance.

Id.

68a

(d) Better management of operator avail-

ability and hiring.

The MTA has found that the lack of an operator (bus

driver) accounted for about 7% of the missed trips occur-

ring between January to August 1998. MTA Br. at 11. The

MTA believes that this problem is not caused by an

insufficient number of operators, but by the need for

better management of the available operators. Id. To

address these concerns, the MTA recommends various

management steps including ensuring that operators not

take vacations at the same time and that the right number

of operators are assigned to each shift at each division.

Instead of hiring more operators, the MTA recommends

varying the rate of hiring to match seasonal trends in the

need for operators. Id.

(e) Reduction of in-service failures.

The MTA has also concluded that accelerated replace-

ment and improved reliability of alternate fuel buses will

reduce the number of missed trips caused by in-service

failures. Id. at 12. The MTA proposes to test a “staged”

buses program, increase maintenance staffing, and pro-

vide for additional training of maintenance personnel.

MTA Br. at 12-13. Under the “staged” buses program, up

to ten buses will be stationed on call at five locations

during peak hours. Id. at 12. The MTA believes that this

will enable it to respond quickly to service disruptions

and to reduce the amount of time lost between the trou-

ble call, loss of service, and replacement. The MTA plans

to test and evaluate this program in 1999. Id. at 11.

69a

In addition, since July 1998, the MTA has hired up to

53 additional mechanics, which has resulted in improve-

ments in the ratio of past-due, critical preventive mainte-

nance program repairs and an increase in the miles

between total road calls (“MBR”). Id. at 13-14. The MTA

has set an objective to increase the MBR from 700 in July

1998, to 2000 by June 2000. Id. at 14. The MTA notes that

the Cancellations and “Out Lates” of buses were reduced

to less than 1% by November 1998 compared with over

3-1/2% in August 1998. Id. According to the MTA, these

improvements are a direct result of increased emphasis

on maintenance issues. The MTA contends that it now has

a sufficient number of mechanics to achieve these goals.

Id. The MTA also plans to improve training for

mechanics. Id.

(f) Other actions.

The MTA’s remedial plan includes other actions to

reduce overcrowding. These include training for bus

operators to improve consistency of actions and deploy-

ment of Operations Supervisors at recurring problem

sites. MTA Br. at 15. In addition, the MTA plans to pro-

cure and install automated passenger counters (APCs) on

20% of the fleet to provide more reliable tracking on

overcrowding and will initiate a pilot project to utilize

TRS for vehicle tracking and remote supervision, which

will allow the MTA to provide faster in-service control

and to make adjustments in real time. Id.

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2. Schedule Adherence

The MTA’s causal analysis and remedial plan are

premised on the assumption that proper management of

schedule adherence is crucial to the even distribution of

passenger loads throughout the day. In theory, a bus

running early increases the likelihood that the next bus

will be forced to pick up a substantially greater load of

passengers, and buses departing excessively late also

cause overcrowding. MTA Br. at 15. The MTA’s analysis

concludes that 29.1% of the instances of overcrowding are

due to poor schedule adherence by MTA operators.° Id, at

16.

To improve schedule adherence, the MTA recom-

mends several steps. First, the MTA suggests the deploy-

ment of additional on-street supervisors to force

operators who “run hot” (i.e., run ahead of schedule) to

adhere to the schedule. Id. Second, the MTA intends to

enforce more strictly its collective bargaining agreement

5 MTA’s data reveal that early arrivals were found to cause

18% of such occurrences while excessive lateness was the cause

of the remaining 11%. Id. at 16.

6 The MTA has tested this approach over a two week period

on Line 33 which runs from downtown Los Angeles, via Venice

Boulevard, to the City of Santa Monica, a line that has

experienced an usually [sic] high number of instances of

overcrowding attributable to poor schedule adherence.

According to the MTA, there was a 31% decline in the number of

load factor violations, from 42% to 29%, as a result of improved

schedule adherence during the demonstration period. Id. at 17

and Woodbury Decl. {{ 16, 17. See also BRU Op. Br. at 22-23;

MTA Rp. Br. at 5.

7la

by taking disciplinary action against operations person-

nel for rule violations that impact on-time performance.

Id. The MTA also recommends making use of automated

passenger counters and radio system monitoring tech-

niques for better identification of problem routes, runs

and operators. Id. at 17. Finally, the MTA plans to dele-

gate additional responsibilities to the Transportation

Division Dispatchers to enable the reduced number of

Transit Operations Supervisors to focus on schedule

adherence. Id. at 18. The MTA cites the successes of the

San Diego and Minneapolis transit systems as evidence

that on-site supervision can improve schedule adherence.

Id. at 17-18.

3. Insufficient Scheduled Service

The MTA also concludes, based on its analysis, that

19.2% of the instances of overcrowding are due to insuffi-

cient scheduled service. MTA Br. at 19. To address this

problem, the MTA proposes to add 30 buses to the peak

fleet. Id. Moreover, to meet the load factor targets of 1.25

by June 2000, the MTA proposes adding, no later than

December 1999, 130 additional buses to the peak fleet

(over and above the 30 buses mentioned above). Id. at

19-20.

In designing a remedy for this factor, the MTA has

submitted an analysis of the 20 most overcrowded lines

conducted by various MTA personnel responsible for

designing bus schedules (“Schedule Makers”). This anal-

ysis includes recommendations on how to address the

specific causes of overcrowding for each of the lines,

72a

utilizing various schedule adjustments such as short-lin-

ing, adjusting headways, deadheading, interlining, and

re-tieing. Id. at 20-21. The analysis by the MTA’s Schedule

Makers also includes recommendations on how many

additional buses would be required to meet both the 1.35

and 1.25 load factor targets. Based on the analysis of

these Schedule Makers, the MTA concluded that 160

additional buses would be required to ensure compliance

with the Decree. Id. at 46.

B. BRU’s Casual [sic] Analysis and Remedial Plan

Taking into account both the MTA and the BRU point

check data, the BRU has conducted a violation by viola-

tion analysis of the peak hours, between January and

September 1998, on the 75 lines that the MTA and the

BRU agreed were in violation of the Consent Decree. See

Mapping of Load Factor Violations, Weekday A.M. and

P.M. Rush Hours (75 Lines (dated Dec. 11, 1998) (Admin-

istrative Record (“AR”) Tab-59 (“BRU Analysis”)). In this

analysis, every violation was matched to its schedule to

determine if all the scheduled buses arrived, and, if so,

what time they arrived and how many people were on

the buses. From this analysis, Plaintiffs concluded that

there were two primary sources of load factor violations:

(1) scheduled buses not arriving at all (40%-50%), and (2)

not enough buses even when all the scheduled service

arrived (50%-60%). See BRU Remedial Plan at 3-4. The

BRU attempted to code every violation on every line

according to these two primary causes. In conducting its

mapping analysis, the BRU relied on MTA and BRU data

showing the full extent of the MTA’s historical noncom-

pliance recorded from January 1, 1998 and then analyzed

73a

these data using the 20-minute sliding-window periods.

In tailoring a remedial plan to cure the massive viola-

tions, the BRU addressed both the violations caused by

missing buses and the violations caused by insufficient

capacity. Id.

1. Remedies for Missing Bus Violations

The BRU’s plan to remedy the approximately 50% of

load factor violations caused by missed trips aims to

improve the reliability of the operating fleet through

modernization and engine replacement and by hiring

additional. operators and mechanics. The specific pro-

posals include requiring the MTA to:

¢ Purchase 333 new CNG buses over and above the

MTA’s accelerated procurement plan to provide

for the replacement of all buses over the federal

12-year/500,000-mile retirement standard by the

June 2000 load factor target.

e Replace engines in methanol/ethanol fleet.

¢ Complete CNG warranty program.

¢ Hire 112 operators to increase the operator spare

ratio to 1.20.

e Hire 64 mechanics to expand preventative, critical

and general maintenance.

e Expand maintenance training and supervision.

e Create/expand recurring defects analysis pro-

gram.

e Improve spare parts management.

74a

e Improve management of emergency service for

bus accidents, advance notice of special events,

traffic management, and radio system.

BRU Remedial Plan at 5-6.

2. Remedies for Insufficient Capacity.

The BRU’s remedial plan addresses the serious prob-

lem of insufficient capacity by first analyzing how many

additional bus trips are needed to achieve the load factor

targets for each bus line. Id. at 6-8. The BRU’s analysis

concludes that additional service is required on 57 lines

to meet the 1.35 and 1.25 LFTs. Id. at 6. To provide this

level of service, the BRU recommend the immediate pur-

chase of 348 additional buses (plus 70 spares) to meet the

1.35 target, and 157 additional buses (plus 31 spares) to

meet the 1.25 target. Reducing this total of 606 buses by

the 53 buses that MTA already has planned for expansion,

the BRU recommends that the MTA expand its fleet by

procuring 553 new CNG buses. Opening Brief for Plain-

tiffs and the Plaintiffs Class at 33 (Filed Feb. 8, 1999)

(“BRU Br.”). The BRU also recommends increasing the

Operator Availability Ration (“OAR”) from 1.16 to 1.20

and hiring 184 additional mechanics. BRU Remedial Plan

at 7, 5.

Additionally, because the bus procurement process

generally takes 18 months, the BRU’s plan would require

the MTA to lease immediately 348 new CNG buses to

meet the 1.35 target until the purchased buses arrive.

BRU Br. at 33.

Finally, Plaintiffs contend that Section II.B of the

Consent Decree requires the MTA to add into service 102

75a

additional buses (i.e., buses in addition to those already

planned for replacement purposes). Id. at 36.

3. Monitoring and Reporting.

The BRU points out that the MTA has reduced its

point check/ride check staff from approximately 60 to 29.

BRU Remedial Plan at 7. The BRU recommends that the

MTA continue the frequency of checks at two times a

month on the top 20 lines and increase the frequency of

point checks to two times a month on the rest of the 55

lines. Id.

In addition, in order to monitor overcrowding more

effectively, the BRU proposes that the MTA prepare a

quarterly report that tracks all remedial action, per line

and system-wide, including:

(a) Cancelled and late runs totaled for each month;

(b) Equipment failures in-service listed by amount,

reason, bus series and line;

month;

(d) Point check data matched to scheduled times

and bus runs, with analysis of every violation;

and,

(e) A mapping of every load factor violation for

each line over time.

Id. at 7-8.

76a

IV. ANALYSIS OF ISSUES AND FINDINGS.

A. Causes of Load Factor Violations.

1. Load Factor Data.

Under the Consent Decree, a violation occurs when

the average load factor on any bus line during any sliding

20-minute (non-overlapping) period during the peak

morning or evening rush hours exceeds the load factor

target. See Order Re Plaintiffs’ Motion for Reconsidera-

tion (filed Aug. 25, 1998). The fact that a particular bus or

several buses carry more than 15 standing passengers and

thus exceed the 1.35 ceiling will not result in a violation

unless the average load factor for a non-overlapping 20-

minute rolling period exceeds 1.35. Furthermore, it is

important to keep in mind that the determination of load

factor exceedence is based on MTA and BRU point check

data that monitored only a sample of the number of bus

trips from November 1997 through September 1998. Con-

sequently, the “violations” are only representative of the

extent of overcrowding. Nevertheless, the general consis-

tency of BRU and MTA data generally establish the val-

idity of the sampling size.

In the analysis supporting its remedial plan, the BRU

relied upon incidents of exceedence during the entire

period from November 1997 through September 1998 and

utilized, properly, the sliding 20-minute window. The

BRU also provides. the data for all 77 lines. See BRU

Analysis. The MTA, on the other hand, apparently con-

ducted its analysis using a static 20-minute window, lim-

ited the incidents of violation to more recent occurrences,

and focused on the 20 most heavily traveled lines. See

MTA Br. at 20; see also Deposition of Frank Schroder at

77a

79:17 — 80:6 (dated Jan. 13, 1999). Therefore, the data

concerning line by line violations relied upon by the BRU

in fashioning its remedial plan are more comprehensive

and useful in analyzing the causes of load factor exceed-

ence. This is not to say that the conclusions that the BRU

draws from its analysis of these data are always correct.

However, the BRU’s data provide a more comprehensive

picture from which to determine line-by-line causes of

load factor violations and serves as a basis for tailoring

appropriate remedies to the problem of overcrowding. -

2. Causes of Overcrowding.

The parties generally agree that about half of the

incidents of overcrowding are attributable to missed

trips resulting from the unavailability of a bus, the

unavailability of an operator or in-service failure. MTA

Br. at 3-5; BRU Remedial Plan at 3-4; see also Declaration

of Dana Woodbury { 8 (dated Feb. 8, 1999) (“Woodbury

Decl.”).

They differ sharply on the other half. The MTA found

that 29% of overcrowding was caused by poor schedule

adherence and that only 19% was a result of insufficient

capacity. MTA Br. at 5; Woodbury Declaration {{ 8-9. The

BRU, on the other hand, found that 50%-60% of the load

factor violations were caused by insufficient capacity and

accorded negligible weight to poor schedule adherence as

a cause of overcrowding. BRU Remedial Plan at 4.

The gap between the parties on this issue, however,

may not be as large as it seems. The MTA acknowledges

that improved management of schedule adherence cannot

eliminate 29% of the load factor violations and that it is

78a

very difficult to reduce late arrivals through schedule

management alone. See, e.g., Woodbury Decl. { 28 (sched-

ule adherence can only remedy one out of six violations).

Moreover, the BRU does not deny that improvements in

schedule adherence, especially in combination with other

factors such as added capacity, will reduce instances of

overcrowding. See Declaration of Thomas Rubin { 42

(dated August 14, 1998) (“Rubin Decl.”).

As discussed more fully below, a combination of

remedies, including accelerated replacement, fleet expan-

sion and better schedule adherence, are necessary to meet

the LFTs. While I believe that the MTA overstates, and the

BRU understates, the extent of poor schedule adherence

as a cause of overcrowding, I do not believe that it is

necessary to allocate a specific causal percentage to

schedule adherence to design an interactive remedial

plan.

B. Remedy for “Missing Buses”.

The MTA and the BRU agree that most of the viola-

tions attributable to missing buses can be cured by sub-

stantially improving the reliability of the fleet. BRU

Remedial Plan at 5; MTA Br. at 7. They further agree that

the conversion of the ethanol buses and warranty repair

of the CNG buses are important to improved reliability.

BRU Remedial Plan at 5; MTA Br. at 9-10. Finally, they

agree that reliability can be enhanced by the retirement

and replacement of older, less reliable diesel buses on the

fleet. BRU Remedial Plan at 5; MTA Br. at 7-8.

BRU bases its proposed remedy on the fact that

under the MTA’s accelerated procurement plan there will

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be 599 buses over the 12-year/500,000-mile retirement

limit in June 2000, the date by which the 1.25 load factor

target must be achieved. BRU Remedial Plan at 5. After

the conversion of the ethanol/methanol fleet, the MTA

will still have 333 buses over the 12-year/500,000-mile

mark. Thus, the BRU proposes the immediate procure-

ment of 333 buses for delivery prior to June 2000. Id.

It is beyond question that the MTA’s active fleet has

become older in recent years. The size of the MTA bus

fleet has steadily declined from FY93 through FY97 while,

at the same time, the age of the fleet has steadily

increased during the same period. See Mundle & Associ-

ates, Review of CACMTA’s Bus Operating Plans at V-2

(dated Mar. 1998) (AR Tab 77). The percentage of buses

that exceeded 12 years of age in June 1997 had increased

to 45%. Id. at Exh. V-5. Excluding the methanol buses

from the age calculations (which have had significant

unreliability problems), the percentage of the fleet that

exceeded 12 years in June 1997 was 52%. Id. at Exh. V-6.

Nor is there any dispute that the continued use of

olde: buses has led to increasingly frequent and expen-

sive maintenance and has increased the number and

severity of breakdowns. As of July 27, 1997, the MTA had

a total of 2,416 buses, of which 2,103 were in the active

fleet and only 1,666 were operational. Id. at V-2.7 Accord-

ing to MTA’s statistics, there were 333 cancelled runs in

FY94 compared to 7,093 in FY98. See MTA Cancelled and

Late Runs FY93 Through FY98. AR Tab 84. In addition,

7 The total fleet included buses that wer sed by private

contractors and buses that were retired from s-=rvice.

80a

there were 3,681 late runs in FY 94 compared to 15,079 in

FY98. BRU Br. at 10.

To address the problems associated with a rapidly

aging fleet, the MTA Board approved an accelerated bus

replacement schedule in October 1998. In his declaration,

Mr. John Drayton, MTA’s Acting Director for Vehicle

Acquisition, Technical Support, Warranty and Reliability,

points out that as a result of this accelerated bus procure-

ment plan, the MTA will be receiving over 1,237 new

buses over the next three fiscal years (through FY02).

Declaration of John Drayton { 4 (dated Feb. 8, 1999)

(“Drayton Decl.”). One half of these buses will be deliv-

ered within the next 18-24 months. Id. [ 5. At the time the

Consent Decree was entered in October 1996, the MTA’s

replacement schedule for Fiscal Year 1998 through Fiscal

Year 2004 was 1,313 buses. As a result of the accelerated

procurement plan, the MTA’s replacement schedule will

provide 2,095 buses over the same period of time. This

represents a procurement of 782 buses over and above

what had initially been contemplated for this period, at

an additional cost of almost $300 million. Id.

The BRU points out, however, that most of these

replacement vehicles will not arrive by June 2000 in time

to meet the 1.25 LFT. BRU Br. at 19-20. In fact, under the

accelerated plan, there will actually be a decrease by 26

buses from the number of buses previously scheduled to

arrive in this fiscal year (FY99) and a net increase of only

203 buses in FY99 and FY00, which will be delivered by

June 2000. Id. Section II of the Decree requires the Special

Master to design a remedy that will meet the 1.35 load

factor target “as soon as possible” and the 1.25 target by

June 2000. The accelerated arrival of buses after June 2000

8la

undoubtedly will prove necessary to meet and maintain

subsequent reduced load factor targets, but this is not a

remedy for the violations which have already occurred.

Nevertheless, the MTA has set in motion a number of

specific steps that will have a measurable effect on meet-

ing the June 2000 LFTs. MTA Br. at 7-10. First, the MTA

currently has contracts for the acquisition of 538 buses,

expected to be delivered by June 2000, which will

decrease the average age of the MTA fleet from 9-1/2

years to approximately 6 years. Id. at 8. Second, the MTA

will complete the conversion of 333 ethanol buses, which

have been extremely unreliable, into diesel buses by

December 1999. Id. at 9. Third, the MTA will complete the

repair of defects pursuant to warranty on 594 new CNG

buses by May 1999. Id. at 10. Finally, the MTA purchased

20 low floor buses from Las Vegas which were placed in

service on November 11, 1998 after corrective repairs

were completed. Id.

It is evidence that the MTA’s accelerated bus procure-

ment program, approved by the Board last October, is a

critical step that is fully consistent with the objectives and

spirit of the Consent Decree. The evidence supports the

conclusion that this accelerated program will improve the

condition of the MTA’s fleet by reducing the number of

missed trips caused by the lack of operable equipment

and service failures. I am persuaded that the combination

of these new, converted and repaired buses, which total

1,485, will substantially improve the reliability of the fleet

prior to the June 2000 load factor target. Moreover, the

replacement program is consistent with the practical real-

ity of efficient procurement planning and bus deliveries.

The accelerated procurement schedule will stagger the

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delivery of buses. As Mr. Drayton points out, it is imprac-

tical to replace a bus fleet all at once due to the physical

constraints of receiving a large number of buses all at one

time as well as the problems that are created when an

entire fleet gets old and must be replaced at the same

time. Drayton Decl. { 4.

In my view, the BRU has underestimated the extent

to which the elimination of many of the most unreliable

buses from the fleet and their replacement with 1,485

new, converted and repaired buses before June 2000 will

substantially improve the reliability of the MTA’s active

bus fleet and therefore reduce significantly the number of

incidents of overcrowding that are attributable to missing

buses. Moreover, the evidence suggests that the MTA’s

accelerated bus procurement program will contribute to

significant improvement in overall fleet reliability. From

FY98 through June 2000, the MTA plans to obtain 895 new

buses, 240 more replacement buses than scheduled under

the previous plan. If executed on time, the average age of

the fleet will be reduced from 9.73 in FY99 to 7.66 by June

2000. 1998 Bus Procurement Plan and Summary Age of

Fleet at 2 (AR Tab 66). While a vehicle that has reached

the 12-year/500,000-mile threshold is eligible for replace-

ment with federal assistance, it is not absolutely essential

that no bus be allowed to operate beyond this threshold.

Indeed, some of the older buses in the MTA’s fleet have

been more reliable than some of the newer alternative

fuel vehicles.

While the BRU’s goal of retiring all buses exceeding

this threshold by June 2000 is laudable, I am not per-

suaded that this further step is necessary to eliminate the

load factor violations attributable to inoperable buses or

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in-service breakdowns. With the delivery of 437 replace-

ment buses in FY00 - the highest annual level in the

accelerated plan - the MTA should be able to retire vehi-

cles with a history of mechanical problems. Id. at 1. With

operating spares, the MTA should have a far more reli-

able fleet.

For these reasons, I have concluded that it is not

necessary to direct the MTA to purchase immediately the

additional 333 new CNG buses to address the “missing

bus” cause of load factor exceedence. I find that the

MTA’s engine conversion and warranty repair program,

together with the accelerated bus replacement plan,

should be sufficient to remedy the violations caused by

inoperable buses. Since additional buses will be required

to address the “insufficient capacity” cause of load factor

exceedence, see Section IV.F below, there are limits as to

how many new buses the MTA can procure and assimi-

late in one fiscal year, and, in my judgment, the immedi-

ate need for additional capacity is more critical at this

point in meeting the LFTs. However, should the MTA

modify or scale back its accelerated bus replacement plan

or fail to make timely conversions or warranty repairs to

alternate fuel vehicles, additional measures may be

required at that time.

C. Operator Availability.

The BRU also contends that the current operator

assignment ration (OAR) of 1.16 is inadequate to ensure a

cushion of reserve operators to cover for illness, military

leave, court duties, discipline and other events that pre-

vent operators from being available to work. Although

84a

the MTA notes that the lack of operator availability

accounted for 7% of the missed trips that occurred

between January and August 1998, it rejects the BRU’s

proposal to solve this problem by increasing the OAR

from 1.16 to 1.20, which would require approximately 112

new bus operators at an annual increased cost of $6

million. See Declaration of Gary Spivack {{ 11-13

(“Spivack Decl.”).8 Instead, the MTA plans to improve the

management of available operators by ensuring that the

right number is assigned to each shift, coordinating vaca-

tions, and studying how to establish specific OAR levels

for each division.? Id. at { 12.

In my view, the record does not justify a mandatory

increase of the OAR at this time. Nonetheless, the MTA

needs to take whatever steps are necessary to comply

with the requirements of the Decree by substantially

eliminating the number of missed trips attributable to

operator unavailability. If this objective is not achieved by

the end of December 1999, through the management

reforms proposed in the MTA’s plan or by other appropri-

ate steps taken by the MTA, then it will be necessary to

8 There seems to be an inconsistency in the MTA’s position

with respect to operators. Mr. Woodbury states in his

declaration that “the hiring of additional operators will ensure

that schedule assignments are filled.” See Woodbury Decl. { 20.

In contrast, Mr. Spivack claims that hiring more operators is “a

simplistic solution” and is “not cost-effective.” See Spivack Decl.

{ 12.

9 It is difficult to understand why these types of

improvements have not already been made given that the load

factor reduction requirements have been in place since October

of 1996.

85a

consider further action in this area. Under the new

reporting requirements set forth infra at V.8, the MTA is

directed to report, on a quarterly basis, its progress in

meeting this objective.

D. Other MTA Proposals to Address Reliability.

1. Staged Bus Project. The MTA also proposes a

“staged” bus pilot project of up to ten buses (at an initial

five locations) during peak hours on some of the most

crowded lines. MTA Br. at 12-13. The MTA states that this

program will enable it to respond quickly to service dis-

ruptions and mechanical malfunctions and to adjust

headways to reduce overcrowding. Id. at 12. This pro-

gram will be in place during 1999 as a temporary pro-

gram and will be reevaluated before it is implemented

further. Id. at 13.

Given the severity of the “missing bus” problem, the

MTA is directed to proceed with the implementation of

this pilot project. While it is hoped that the results will be

helpful in reducing overcrowding, it is not possible to

conclude at this time that this is a long-term solution to

the load factor exceedence problem under the Consent

Decree. The MTA shall report on the results of this pilot

project in its Quarterly Report to the Special Master.

2. Mechanics. The BRU has recommended, as part

of its remedial plan, an increase of the current mechanic

workforce by approximately 184 new mechanics. BRU

Remedial Plan at 5. The MTA opposes the plan, noting

that the number of mechanics was increased by 47 in July

1998, and was further increased by six mechanics during

the recent mid-year budget adjustment. MTA Br. at 13.

86a

The MTA also has set some specific goals and claims

significant progress already in meeting them. For exam-

ple, the MTA plans to increase mean miles between total

road calls (MBR) from 700 in July 1998 to 2,000 by June

2000 (and states it has achieved an average of 1,047 miles

in recent months.) Id. at 14.

The evidence presented in the Administrative Record

does not necessitate a finding at this time that the addi-

tional mechanics recommended by the BRU are necessary.

The MTA must take all reasonable steps to ensure that it

has in place an adequate workforce of mechanics to meet

the LFTs as required by the Consent Decree. However, it

is up to the MTA to determine specifically the number of

mechanics that will be required for compliance and to

include this information, as well as the progress it is

making in achieving its goals in this area, in its Quarterly

Reports.

3. Automation. The MTA includes in its remedial

plan the procurement and installation of APCs on 20% of

the fleet. It also recommends a pilot project to utilize TRS

for vehicle tracking and remote supervision, thereby pro-

viding faster in-service control and adjustments. See

Spivack Decl. { 23; MTA Br. at 15. These appear to be

useful actions which may facilitate monitoring and com-

pliance in a timely and cost-effective manner. The MTA is

directed to proceed with these steps as a component of

the remedial plan to achieve compliance with the load

factor targets established by the Consent Decree. Id.

87a

E. Schedule Adherence.

The MTA attributes approximately 29% of the cause

of load factor exceedence to failed schedule adherence,

with approximately 63% of the scheduled adherence fail-

ures attributable to the early arrival of buses. MTA Br. at

5, 15; Woodbury Decl. { 15. The MTA is not suggesting

that 29% of the problem can be fixed through better

management and on-street supervision of scheduled

adherence. It is suggesting, however, that improvements

in on-street supervision and better enforcement of the

collective bargaining agreement will result in a signifi-

cant reduction of the incidents of overcrowding. While

Plaintiffs apparently attribute no quantifiable load factor

improvement to better management of schedule adher-

ence, they do recognize that “all else equal, maximizing

schedule adherence will generally have a positive impact

on reducing some overload conditions.” Rubin Decl. ] 42.

Nonetheless, the BRU asserts that the MTA significantly

overstates the importance of schedule adherence to

reduced load factors and compliance. BRU Br. at 20-24.

I have concluded that schedule adherence is a bit of a

chicken-and-egg problem. It is as much a result of over-

crowding as a cause of overcrowding. If sufficient buses

are not provided on a route, then it follows that addi-

tional time will be required for passengers to board and

deboard overcrowded buses, which will slow down travel

speeds and cause the buses to fall behind schedule.

Therefore, late buses may be in part a manifestation of

insufficient capacity and unmet demand.

Moreover, there is ample evidence to suggest that

there are a number of additional factors, clearly beyond

88a

the control of effective management of scheduling adher-

ence, which contribute to the late arrival of buses. These

include traffic accidents, street construction, crime and

police action incidents, passenger incidents such as ill-

ness, disabled vehicles, weather-related delays, spiked

increase in ridership demand due to special events and

excessive traffic congestion due to any number of factors.

See, e.g., MTA Br. at 15, 19; Rubin Decl. [J 42-43. On the

other hand, there are remedial steps that are part of one

or both of the proposed remedial plans that will have a

positive effect on schedule adherence. These include

adding additional capacity to handle passenger demand,

refining bus schedules to reduce overcrowding, improv-

ing the reliability of buses to reduce in-service failures,

and managing operator availability more successfully.!°

MTA Br. at 5-19; BRU Br. at 30-33.

I have concluded that adding additional capacity,

refining schedules, improving bus reliability, and better

management of operator availability will work in con-

junction with more successful management of schedules

to reduce load factor exceedence caused by poor schedule

adherence. I expect that some progress will be made in

reducing early arrivals. However, I find that mere effi-

cient schedule adherence — without more — will not have

a substantial impact on the problem of late arrivals. I

would also note that while the MTA has taken steps to

10 On balance, however, as the MTA concedes, it is not

possible to place very much confidence in the elimination of late

bus arrivals through more efficient management of schedule

adherence even though it is anticipated that as various other

components of the remedial plan are implemented, schedule

adherence will improve and late bus arrivals will be reduced.

_ nro ar re TERN > EMME rr rns pee eC mee RE

CSE EO VR RES Ce.

89a

improve field supervision of schedule adherence, the

‘ranks of transit operations supervisors (“TOS”) have been

reduced from 385 in FY 1990 to only 186 today. MTA Br. at

18.11

Therefore, I have given far less credence to schedule

adherence as an effective remedy for load factor viola-

tions. Only in those instances where load factor exceed-

ence appears to be attributable to the early arrival of

buses, perhaps on a so-called “hot run,” have I given

some weight to this component of the MTA’s remedial

plan. I have concluded that it is probable that some load

factor reduction can be achieved by reducing the number

of buses that arrive early through better schedule adher-

ence management, and by implementing plans to

improve on-street supervision of schedule adherence

with particular emphasis on eliminating early arrivals, if

these remedies are executed in conjunction with others,

as outlined in this Decision. Accordingly, the MTA should

proceed with all of the schedule adherence improvements

outlined in its remedial plan.

11 The MTA proposes to refocus the efforts of the smaller

TOS staff on street supervision by hiring additional

Transportation Division Dispatchers (TDD) to handle duties

unrelated to on-street supervision that are presently being

handled by TOS staff, thereby allowing the TOS staff to devote

their time to supervising the lines and providing instruction and

training of operators. The MTA indicates that it is hiring retired

TOS staff to serve as line regulators on an interim basis until

additional personnel can be hired and trained, but the MTA has

not indicted how many additional TOS personnel it plans to

hire. The TOS staff formerly occupied with other duties are now

in the field and form the basis of “Tiger Teams” who work in

groups to monitor and patrol targeted lines. Spivack Decl. { 8.

90a

F. Remedy for Insufficient Capacity.

The MTA’s operations planning staff initially

analyzed the instances in which the 1.35 load factor target

was exceeded by reviewing the numerous point checks

conducted during 1998 on the 20 highest ridership bus

lines. The MTA’s analysis concluded that for 1,369

instances of overcrowding observed during 1,424 point

checks, insufficient capacity (i.e., not enough buses) was

found to be the primary cause of only 19.2% of all

instances where the load factor targets were exceeded.

MTA Br. at 5. The MTA proposes to meet the 1.35 load

factor target as soon as possible by adding 30 buses to the

peak fleet. According to the MTA, these 30 buses, which

are already in the fleet, will reduce overcrowding to a de

minimis level no later than June 1999. Id. at 19. To meet

the load factor target of 1.25 by June 30, 2000, the MTA

proposes adding 130 additional buses to alleviate

instances of overcrowding due to insufficient scheduled

service (66 buses in June 1999 and 54 buses in December

1999). Id. at 19-20.

The determination that 130 additional buses are

needed to achieve the 1.25 load factor target was based

on a detailed line-by-line analysis of service. The MTA

claims that these additional 130 buses will permit the

MTA to reduce overcrowding to a de minimis level consis-

tent with a 1.25 load factor target on or before the June

2000 deadline. Id. at 20.

The BRU has also conducted its own line-by-line

analysis of 75 bus lines to determine the number of

expansion trips required to meet the load factor target.

Essentially, the BRU calculated the number of expansion

9la

bus trips required by mapping insufficient capacity viola-

tions to determine the time period over which additional

service would have to be added. An additional bus trip

was added for every non-overlapping 20-minute period

exhibiting at least one insufficient capacity violation. Bus

trips were also added for time periods sandwiched

between violation periods, or at the end of a range of

violations. In some instances, the BRU calculated the

number of bus trips by adjusting the “headways” (time

between buses) and taking into account the “recycling” of

buses. Under this analysis, the BRU calculated that a total

of 606 buses would be required to meet the load factor

targets. Subtracting the 53 additional buses that MTA

already has scheduled to be purchased, the BRU has

recommended an immediate purchase of 553 buses. Dec-

laration of Ted Robertson { 23 (dated Feb. 8, 1999).

The MTA argues that the BRU’s bus acquisition plan

is overstated because, among other things: (1) additional

buses on selected bus lines in specific time periods are

proposed, despite the absence of a documented history of

overcrowding within the specific time period; (2) additional

buses are proposed although no documented incidence of

overcrowding has occurred for many months; (3) there is

no attempt to mitigate overcrowding resulting from poor

schedule adherence other than by adding more buses; (4)

bus trips over converted into a number of additional

buses required by using a method that employs only one

of many available scheduling techniques for economizing

‘the number of buses needed to operate at a specified level

of service; and (5) the BRU estimates of the number of

additional buses needed to achieve the 1.25 load factor

reduction target are inflated because they are based on an

92a

unreasonably high estimate of patronage growth over the

next 18 months. MTA Br. at 49.

As indicated in the line-by-line analysis below, I have

taken into account some of these criticisms and have

adjusted the number of additional buses that would be

required to meet the load factor targets as recommended

by the BRU. I am not persuaded, however, that only

recently documented incidents of overcrowding should

be taken into account. Failure to meet the LFT on Decem-

ber 31, 1997 constitutes a “violation” and the pattern of

LFT exceedence has continued throughout 1998. While

substantial evidence of improvement may be taken into

account on certain lines, there also may be seasonal varia-

tions which are relevant. It therefore is appropriate to

consider violations that have occurred since January 1,

1998.

The MTA also maintains that it can provide a more

cost-effective and efficient response to the need to reduce

overcrowding through sophisticated scheduling tech-

niques, which its highly-experienced Schedule Makers

can undertake given their familiarity with the particular

characteristics of the lines to which they are assigned.’

The MTA believes that another common practice,

involving deadheading buses (buses operating without

12 For example, when demand is not consistently high over

all segments of a bus route, it is possible to operate a higher

level of service over busy portions of a route and reduce levels

of service over less heavily patronized segments. Additional

buses can operate on the heavily patronized segments and then

return for a second trip much sooner through a practice known

as “short turn.”

93a

passengers back to their starting points, thereby making

them available sooner for additional trips), is also an

efficient and effective response to overcrowding. Sim-

ilarly, the MTA suggests that on some routes, where a bus

is no longer needed on one line, the same bus can be

employed on a nearby line to meet scheduled trip needs

through a process called interlining. Finally, the MTA

argues for a more elaborate technique, which involves

repackaging the combination of trips that will be oper-

ated by each bus assigned to a line (known as re-tieing

service) and adjusting headways (the time between

' buses). Declaration of Frank Schroder {J 5-7 (dated Feb.

8, 1999) (“Schroder Decl.”); MTA Br. at 21-2. The MTA

believes that its use of all of these techniques will reduce

the number of additional buses that will be required to

remedy lack of capacity.

In addition, the MTA states that it cannot assimilate

the 553 additional buses proposed by the BRU because of

the limited physical capacity of the MTA’s facilities (e.g.,

room to park, ability to fuel, facilities to maintain). The

MTA contends that its capacity is limited to an active fleet

of 2,354 buses (including spares) within the current oper-

ating division structure. MTA Br. at 47. The MTA decided

to close Division 12 (because of its cost-inefficient loca-

tion) after the Consent Decree was executed, but even if

this Division were reopened, it would apparently increase

physical capacity by only 130 buses (including spares) to

2,484, at the additional annual cost of $2 million. Id. The

MTA states that it currently operates over 1,700 peak

buses. Id. An increase of 553 peak buses over the next 18

months would require it to have the ability to garage and

maintain an active fleet of 2,704 buses (1,700 plus 553

94a

equals 2,253 plus 20% spares equals 2,704). Id. Since the

MTA’s availability capacity at existing divisions would

support an active fleet of 2,354 buses, the excess 350

buses over the MTA’s capacity is the equivalent of one

additional operating division. Id. Given the time required

for funding, site location and acquisition, environmental

planning, design and construction, the MTA contends

that it would not be possible to provide this additional

capacity within the timeframe recommended by the BRU.

Declaration of Michelle Caldwell {J 4-5 (dated Feb. 8,

1999) (“Caldwell Decl.”).

I do not find these arguments entirely persuasive.

According to the Caldwell Declaration, the MTA cur-

rently has some excess capacity to accommodate addi-

tional buses. If Division 12 were reopened, the amount of

excess capacity would increase by about 130 buses. It is

also possible, as suggested by the BRU, that temporary

arrangements could be made to accommodate additional

buses within existing facilities or at temporary locations.

BRU Rep. Br. at 16-19. The record does not show that,

with careful and innovative planning, the MTA would be

unable to accommodate the additional buses called for in

the remedial plan set forth below.

Having reviewed the Administrative and Supple-

mental Record, the Special Master finds that a significant

cause of the load factor violations is a bus fleet that is

simply too small for the ridership demands placed upon

it. See Mundle & Associates, Review of LACMTA’s Bus

Operating Plans at V-9 (March, 1998) (showing the sub-

stantial decrease in the MTA fleet of total, active and

operational buses over the last decade.) For example, on

October 19, 1988 the MTA had a total fleet of 2,957 buses,

95a

2554 active buses, and 1998 operational buses. On July 27,

1997, there were 2,416 total buses, 2,103 active buses, and

1,666 operational buses. Id. at V-2. AR 77.13 Given the

evidence presented, an effective remedial plan must

incorporate an increase in the size of the bus fleet. The

Special Master’s specific line-by-line findings are laid out

below.

1. Meeting the 1.35 Standard

In order to calculate how many additional buses are

required for the MTA to meet the 1.35 LFT, the Special

Master began by reviewing the point check data provided

by the parties and contained in the Administrative and

Supplemental Record. For each of the 75 lines found to be

out of compliance, the Special Master then determined

the time range in the A.M. peak period (6:00-9:00 A.M.) in

which the “insufficient capacity” violations occurred

between January and September 1998. Violations in the

afternoon peak and base periods were also considered;

however the vast majority of violations attributable to

insufficient capacity were in the morning peak periods.

Unlike the BRU plan, time periods reflecting no viola-

tions that were sandwiched between violation periods, or

found at the end of a range, were not included. For each

13 As noted in the BRU brief, on one day in July 1997, the

MTA schedule required 1,743 buses to meet the afternoon peak,

but there were only 1,666 operational buses that afternoon. The

MTA was short 77 buses. BRU Br. at 9 (citing Mundle &

Associates, Review of LACMTA’s Bus Operating Plans at V-3

(March, 1998). See also Id. at V-13 (Operational Buses Versus

Peak Requirement).

96a

non-overlapping time period reflecting at least one such

violation, an extra bus trip was added.4

To illustrate, data maintained on Line 1 show insuffi-

cient capacity violations between 6:00 A.M. and 6:20 A.M.

and subsequently from 7:00 A.M. to 8:20 A.M. Since there

are five (5) non-overlapping periods containing such vio-

lations, five extra bus trips are required. To determine the

number of additional buses needed to run the additional

trips, the Special Master considered the practice of

“recycling” buses — i.e., one bus covering two expansion

trips by finishing the initial route, turning around and

servicing the route again. In the case of Line 1, for exam-

ple, the evidence contained in the record reveals that five

buses are needed to cover the five additional bus trips.

In conducting this line-by-line analysis, schedule

adherence was considered, although much less credence

was given to this factor. The Special Master reviewed the

data available in the Administrative and Supplemental

Record to determine if schedule adherence could com-

pletely account for the violations in any given 20-minute

time period. If so, that period was excluded from the

calculation of the additional trips required to remedy that

line.

14 Time periods containing multiple and recent violations

coded as “unknown cause” by the BRU - i.e., violations color-

coded black in the BRU’s Mapping of Load Factor Violations

(AR Tab 59) — were also sometimes included in this calculation

because they reflect a pattern of overcrowding that is likely due

in part to insufficient capacity.

97a

Moreover, the Special Master did take into account

the MTA’s advanced scheduling techniques such as dead-

heading, interlining and retying. However, given the

excessive number of violations of the 1.35 LFT, which

have continued during the past year, the record simply

does not support the claims by the Schedule Makers that

full compliance can be achieved on many of these lines by

such scheduling techniques alone. Indeed, since the MTA

has known the importance of meeting the LFT since

October 1996, it must be assumed that many of these

techniques have been used (without great success) over

the past few years. With the improved reliability of the

fleet, it is expected that these techniques will be more

effective in the future. Thus, the Special Master has taken

into account the MTA’s ability to employ such practices in

reducing the number of additional trips and buses

needed to remedy violations caused by insufficient capac-

ity. For example, the Special Master eliminated additional

bus trips for periods which showed no violations but

were sandwiched between time period with high concen-

trations of violations. Therefore, the MTA should exercise

its full discretion in scheduling existing and added capac-

ity to meet the LFTs as efficiently as possible, utilizing

these techniques wherever possible; however, the MTA

should be mindful that the Decree would not permit

significant reductions, elimination, or reallocation of exis-

ting service to meet the load factor target. See Memoran-

dum Decision and Recommendation in re Late Nite and

Owl Service Modifications at 4-5; 15 (dated February 29,

1998).

Applying the methodologies described above, the

Special Master finds that 332 buses should be added to

98a

the peak fleet (277 buses + 55 spares (20%)) in order to

meet the existing 1.35 load factor target. This calculation

is broken down, line-by-line, as follows:

(1) Line 1.

Line 1 has exhibited insufficient capacity viola-

tions between 6:00-6:20 A.M. and 7:00-8:20 A.M. Based on

the data and evidence contained in the Administrative

and Supplemental Record, the Special Master hereby

finds that five additional buses are needed to bring this

line into compliance with the 1.35 load factor target.

(2) Line 2.

Line 2 has exhibited insufficient capacity viola-

tions between 6:00-7:40 A.M. and 8:00-9:00 A.M. Based on

the data and evidence contained in the Administrative

and Supplemental Record, the Special Master hereby

finds that seven buses (servicing eight trips) are needed

to bring this line into compliance with the 1.35 load factor

target.

(3) Line 4.

Line 4 has exhibited insufficient capacity viola-

tions between 6:00-6:40 A.M., 7:00-7:40 A.M. and 8:00-9:00

A.M. Based on the data and evidence contained in the

Administrative and Supplemental Record, the Special

Master hereby finds that seven buses are needed to bring

this line into compliance with the 1.35 load factor target.

(4) Line 10.

Line 10 has exhibited insufficient capacity viola-

tions between 6:20-7:00 A.M. and 8:00-8:40 A.M. Based on

the data and evidence contained in the Administrative

99a

and Supplemental Record, the Special Master hereby

finds that three buses are needed to bring this line into

compliance with the 1.35 load factor target.

(5) Line 14.

Line 14 has exhibited insufficient capacity viola-

tions between 6:20-9:00 A.M. Based on the data and evi-

dence contained in the Administrative and Supplemental

Record, the Special Master hereby finds that four buses

(servicing eight trips) are needed to bring this line into

compliance with the 1.35 load factor target.

(6) Line 16.

Line 16 has exhibited insufficient capacity viola-

tions between 6:20-7:40 A.M. Based on the data and evi-

dence contained in the Administrative and Supplemental

Record, the Special Master hereby finds that four buses

are needed to bring this line into compliance with the

1.35 load factor target.

(7) Line 18.

Line 18 has exhibited insufficient capacity viola-

tions primarily between 6:00-7:40 and 8:00-8:40 A.M.

Based on the data and evidence contained in the Admin-

istrative and Supplemental Record, the Special Master -

hereby finds that seven buses are needed to bring this

line into compliance with the 1.35 load factor target.

(8) Line 20.

Line 20 has exhibited insufficient capacity viola-

tions between 6:00-7:20 and 7:40-8:40 A.M. Based on the

data and evidence contained in the Administrative and

Supplemental Record, the Special Master hereby finds

100a

that seven buses are needed to bring this line into compli-

ance with the 1.35 load factor target.

(9) Line 26.

Line 26 has exhibited insufficient capacity viola-

tions primarily between 6:00-8:00 A.M. Based on the data

and evidence contained in the Administrative and Sup-

plemental Record, the Special Master hereby finds that

four buses are needed to bring this line into compliance

with the 1.35 load factor target.

(10) Line 28.

Line 28 has exhibited insufficient capacity viola-

tions between 6:20-8:20 A.M. Based on the data and evi-

dence contained in the Administrative and Supplemental

Record, the Special Master hereby finds that five buses

(servicing six trips) are needed to bring this line into

compliance with the 1.35 load factor target.

(11) Line 30.

Based on the Administrative and Supplemental

Record, the Special Master hereby finds that no buses are

needed to bring this line at this time.

(12) Line 33.

Line 33 has exhibited insufficient capacity viola-

tions between 6:00-8:40 A.M. Based on the data and evi-

dence contained in the Administrative and Supplemental

Record, the Special Master hereby finds that seven buses

(servicing eight trips) are needed to bring this line into

compliance with the 1.35 load factor target.

10la

(13) Line 38.

Line 38 has exhibited insufficient capacity viola-

tions between 6:00-8:40 A.M. Based on the data and evi-

dence contained in the Administrative and Supplemental

Record, the Special Master hereby finds that eight buses

are needed to bring this line into compliance with the

1.35 load factor target.

(14) Line 40.

Line 40 has exhibited insufficient capacity viola-

tions between 6:00-6:20 A.M., 6:40-7:00 A.M. and 7:40-9:00

A.M. Based on the data and evidence contained in the

Administrative and Supplemental Record, the Special

Master hereby finds that six buses are needed to bring

this line into compliance with the 1.35 load factor target.

(15) Line

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