# Appendix — City of Cincinnati v. Miller > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1069%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 2011 - **Citation:** 563 U.S. 974 ## Text Supreme Cour, us. No. 01-___ FILED In The 5 4 JAN rt 2002 Supreme Court of the United’ State@£n« * v 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. , vv On Petition For Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit , vy 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 la 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, V. 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. 2a 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. eT 3a 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, Le te 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. 5a 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 6a 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 7a 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 8a 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. 9a 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 10a 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 ee 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 a 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 I. 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 I. 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) V. ) ) ) ) ) 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 es 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. 6la 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 64a 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 66a 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. (c) Correction of warranty defects in CNG 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. 70a 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; (c) Missing operators summarized by reason per 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 a 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 [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1069%3A2. Public record. Not legal advice.