Amicus Curiae Brief — City of Cincinnati v. Miller

MOTION FILED a

FEB 19 2002 B/

No. 01-1054

- IN THE

Supreme Court of the United States

LOS ANGELES COUNTY METROPOLITAN

TRANSPORTATION AUTHORITY, et ai.,

Petitioners,

v.

LABOR/COMMUNITY STRATEGY CENTER, et ai.,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Motion Of Amici Curiae Foothill Transit, Antelope Valley Transit

Authority, Montebello Bus Lines, City of Azusa, City of Baldwin

Park, City of Claremont, City of Diamond Bar, City of Lancaster,

City of Monrovia, City of Montebello, City of San Dimas, City of

Santa Monica, and City of Walnut For Leave To File Brief Amici

Curiae In Support G* Petition For A Writ Of Certiorari

And Brief Amici Curiae

DarROLD D. PIEPER WILLIAM A. Norris

General Counsel Counsel of Record

Foothill Transit EpwarbD P. Lazarus

RICHARDS WATSON & GERSHON Jessica M. WEISEL

355 S. Grand Avenue AKIN, Gump, STRAUSS,

40th Floor HAUER & FELD, L.L.P.

Los Angeles, CA 90071-3101 2029 Century Park East

(213) 626-8484 Suite 2400

Los Angeles, CA 90067

(310) 229-1000

Attorneys for Amici Curiae

Attorney for Foothill Transit

(Additional Counsel listed on signature page)

ae eae am ene eat es

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MOTION FOR LEAVE TO FILE

Foothill Transit, Antelope Valley Transit Authority,

Montebello Bus Lines, and the Cities of Azusa, Baldwin Park,

Claremont, Diamond Bar, Lancaster, Monrovia, Montebello,

San Dimas, Santa Monica and Walnut (“amici’’) hereby move,

pursuant to S. Ct. R. 37.2, for leave to file a brief of amici curiae

in support of the Petition for a Writ of Certiorari to the United

States Court of Appeals for the Ninth Circuit. Amici are filing

this motion because, although Petitioners and Respondents

consented to the filing of an amicus curiae brief by Foothill

Transit, the additional amici sought to join the proposed brief

after that consent was given. At that time, it was too late to

obtain new consents from the parties. A copy of the proposed

brief is attached.

As more fully explained at pages 1-3 of the attached brief

under “Statement of Interest of Amici Curiae,” amici are

operators of scheduled bus services and cities within greater

Los Angeles County. All may suffer funding losses and

significant disruption in their transportation services should the

district court’s order remain in effect.

This brief will assist the Court in determining whether to

grant certiorari because amici are uniquely suited to explain

the far-reaching implications of the district court’s order and

the Ninth Circuit’s opinion, which override important principles

of federalism. Particularly, amici have a special perspective from

which to address: (1) the need for this Court to grant certiorari

to protect state choice whether to participate in cooperative

federalism programs which provide the federal funding that is

the lifeblood of numerous state and local operations; and (2)

the almost unlimited power that the Ninth Circuit decision gives

district courts to exercise remedial powers against state and local

agencies that enter into voluntary consent decrees without

admitting to or being found in violation of federal law.

Accordingly, amici respectfully request that the Court grant

leave to file the attached brief amici curiae.

Respectfully submitted,

WiuuiaM A. Norris

Counsel of Record

Epwarb P. Lazarus

Jessica M. WEISEL

AKIN, Gump, STRAUSS,

HAvuER & FE.p, L.L.P.

2029 Century Park East

Suite 2400

Los Angeles, CA 90067

(310) 229-1000

Attorneys for Amici Curiae

Daro_p D. Pieper

General Counsel

Foothill Transit

RICHARDS WaTSON & GERSHON

355 S. Grand Avenue

- 40th Floor

Los Angeles, CA 90071-3101

(213) 626-8484

Attorney for Foothill Transit

Sonia RuBio CARVALHO

City Attorney

City of Azusa and

City of Claremont

Best Best & KRIEGER LLP

3750 University Avenue

Riverside, CA 92501

(909) 686-1450

Attorney for City of Azusa

and City of Claremont

ARNOLD M. ALVAREZ-GLASMAN

City Attorney

City of Baldwin Park and

City of Montebello

ALVAREZ-GLASMAN & COLVIN

100 N. Barranca Avenue

Suite 1050

West Covina, CA 91791

(626) 858-9121

Attorney for City of Baldwin Park,

City of Montebello and Montebello

Bus Lines

MICHAEL JENKINS

City Attorney

City of Diamond Bar

Jenkins & Hocin, LLP

1325 Nineteenth Street

Manhattan Beach, CA 90266

(310) 939-1736

Attorney for City of Diamond Bar

Davip RoBERT MCEWEN

City Attorney

City of Lancaster

STRADLING YOcCcA CARLSON

& Rautu, P.C.

660 Newport Center Drive,

Suite 1600

Newport Beach, CA 92660

(949) 725-4000

Attorney for City of Lancaster

MICHAEL G COLANTUONO

City Attorney

City of Monrovia

NEUFELD, JAFFE, LEVIN

& CoLANTUONO, LLP

555 W Sth Street, 30th Floor

Los Angeles, CA 90013

(213) 533-4141

Attorney for City of Monrovia

J. KENNETH BROWN

City Attorney

City of San Dimas

Brown, WINFIELD & CANZONERI, INC.

300 S. Grand Avenue, Suite 1500

Los Angeles, CA 90071-3125

(213) 687-2100

Attorney for City of San Dimas

MARrRSHA JONES MourTRIE

City Attorney

City of Santa Monica

OFFICE OF THE CiTy ATTORNEY

1685 Main Street, 3rd Floor

Santa Monica, CA 90401-3295

(310) 458-8336

Attorney for City of Santa Monica

THOMAS J. WARD

ANTELOPE VALLEY TRANSIT AUTHORITY

MICHELIzz1, SCHWABACHER,

WARD AND BIANCHI

767 W. Lancaster Boulevard

Lancaster, CA 93534

(661) 948-5021

Attorney for Antelope Valley

Transit Authority

Scott E. NICHOLS

City Attorney

City of Walnut

ALVAREZ-GLASMAN & COLVIN

100 N. Barranca Avenue

Suite 1050

West Covina, CA 91791

(626) 858-9121

Attorney for City of Walnut

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i

TABLE OF CONTENTS

Table of Cited Authorities ...............00005.

Statement of Interest of the Amici ..............

SSL R EPA EEO PLEO EO TAFT

Il.

Though South Dakota v. Dole Requires That

States Retain The Choice To Participate In

Cooperative Federalism Programs, The Ninth

Circuit Authorizes District Courts To Strip

Os go er errr

In Ruling That A Party To A Consent

Decree Waives All Meaningful Federalism

Objections To A District Court’s Remedial

Authority, The Ninth Circuit Flouts This

Court’s Precedents, Violates Basic Notions

Of Judicial Restraint, And Discourages The

Settlement Of Litigation ................

a a ay

Page

u

TABLE OF CITED AUTHORITIES

Page

Cases:

Local Number 93, International Ass'n of Firefighters

v. Cleveland, 478 U.S. 501 (1986) ............ 16

Milliken v. Bradley, 433 U.S. 267 (1977) ..... 12, 15, 16

Missouri v. Jenkins, 495 U.S. 33 (1990) .. 12, 14, 15, 16

New York v. United States, 505 U.S. 144 (1992) ...

O’Brien v. Massachusetts Bay Transportation

Authority, 162 F.3d 40 (1st Cir. 1998) ......... 10, 11

Pennhurst State School and Hospital v. Halderman,

pe ee EE ka dns iw ave « ua kos ce kee 6

Rizzo v. Goode, 423 U.S. 362 (1976) ............ 4

Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367

oO iais RAV rad ere sinha Resiaeeeneanees 15

South Dakota v. Dole, 483 U.S. 203 (1987) ...6, 7, 8, 11-

Spallone v. United States, 493 U.S. 265 (1990) ... 3

Stefanelli v. Minard, 342 U.S. 117 (1951) ........ 4

lil

Cited Authorities

Page

Turner v. Safley, 432 U.S. 78 (1987) ......-0005- 4

United States v. Armour & Co., 402 U.S. 673 (1971)

eR ee ay Pees ore ey Tee Lee 16

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

> reer rere rer re 14

United States v. ITT Continental Baking Co., 420

BE SOS IGT ED vnc sven cs ceensc Ceedeceeres 16

Whitcomb v. Chavis, 403 U.S. 124 (1971) ........ 15

Statutes:

Cal. Pub. Util. Code § 130305 ..............-.-- 9

ro ioe 2 a er rere eer rrr 9

ee a i ie: 9

|

STATEMENT OF INTEREST OF THE AMICI

Amici Foothill Transit, Antelope Valley Transit Authority,

Big Blue Bus, Montebello Bus Lines, and the Cities of Azusa,

Baldwin Park, Claremont, Diamond Bar, Lancaster, Monrovia,

Montebello, San Dimas, Santa Monica «nd Walnut ( “amici’’)

are not parties to the consent decree at issue in this case.' Nor

are any of the thousands of bus riders who use their services

each weekday. Yet the Ninth Circuit’s decision affirming the

order of the district court in this case may significantly affect

the amici’s and other transportation services, and the riders who

depend on these services.”

Foothill Transit, Antelope Valley Transit Authority,

Montebello Bus Lines, and the cities of Claremont and Santa

Monica (the “bus operator amici”) operate scheduled bus

services. These amici coordinate their bus service operations

with the overlapping services provided by Petitioner, the Los

Angeles County Metropolitan Transportation Authority

(“MTA”).

The municipalities of Azusa, Baldwin Park, Claremont

Diamond Bar, Lancaster, Monrovia, Montebello, San Dimas,

Santa Monica and Walnut (the “city amici”) are cities within

greater Los Angeles County that provide various forms of van

and bus transit services and transit-related infrastructure projects

to their citizens. These amici also coordinate their transit

operations with MTA as part of a cooperative effort to provide

an integrated transportation network for all of Los Angeles

County.

1. This brief was authored entirely by counsel for amici, and

amici have borne all costs associated with this brief. No party or

other person or entity made a monetary contribution to the preparation

or submission of the brief.

2. None of the amici operate rail services.

2

Because of the manner by which MTA allocates

money to the amici, a substantial drain on MTA’s funding

undoubtedly will drain funding from the amici. Tens of

millions of dollars of funding for the amici’s transportation

services — the regularly scheduled bus services run by the

bus operator amici and the van and bus-transit services run

by the city amici — come from Los Angeles County

Propositions A and C. Each of these Propositions instituted

a one-half cent sales tax in Los Angeles County earmarked

for public transportation. As part of its authority, MTA

controls a substantial pool of these funds and disperses them

to the amici.

The Ninth Circuit ruling challenged here affirms a

remedial order that will cost MTA many millions of dollars

to implement. If MTA attempts to take Proposition A and C

funds it otherwise would distribute to the amici to satisfy

MTA’s court-ordered obligations, less funding would be

available to the amici.’ This development would be disastrous

to the amici and to the residents who depend on amici’s

transportation services.

Not only will the amici potentially lose essential funding,

but the district court’s order jeopardizes the cooperative

relationship between the amici and MTA which jointly

provide an interconnected bus network for residents who

travel beyond or near the boundaries of MTA’s service area.

Complex transportation services like the ones the amici

provide do not operate in vacuums. Overlapping bus services,

3. According to the Special Master, “the Consent Decree

requires that the MTA “reprogram funds, which may include, but not

be limited to, revenues from Proposition A and C discretionary funds”

if it fails to meet its targets. App D, at 51. Thus, there is a very rea!

prospect that MTA will use for its own needs funding upon which

the amici depend.

3

and even localized services such as shuttles and city-operated

vans that transport the disabled, depend on coordination

between the amici and MTA. Together, they forge an

interrelated transportation system for citizens in Los Angeles

County and outlying regions. The district court order

threatens to derail these services. Without considering the

possible effects on the amici, the district court proposed that

the Special Master “consider the movement of buses from

less 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.” App. C, at 48. Were

the Special Master to reduce or eliminate MTA bus services

as suggested, the burden would fall on the amici, who would

be forced to provide replacement or supplemental services

to the displaced riders, without receiving additional funding

with which to pay for such services.

INTRODUCTION

This is a case about federalism. Specifically, it is a case

about the federalism-based limits on the remedial powers of

a federal court to enforce a voluntary consent decree.‘

This Court’s precedents make crystal clear that

federalism principles require that federal courts “exercise the

least possible power adequate to the end proposed” when

issuing remedial orders that substantially affect state and local

decision-making. Spallone v. United States, 493 U.S. 265,

280 (1990) (internal quotations omitted). Courts “must be

4. By “voluntary,” we mean a consent decree where the signing

party has neither admitted a violation of law nor has been adjudicated

to have violated a law.

4

constantly mindful of the ‘special delicacy of the adjustment

to be preserved between federal equitable power and State

administration of its own law.’” Rizzo v. Goode, 423 U.S.

362, 378 (1976) (quoting Stefanelli v. Minard, 342 U.S. 117,

120 (1951)). Particularly when dealing with state agencies

empowered to administer complex state and municipal

institutions, federal courts should hesitate before substituting

their judgments for those of the agencies. E.g., Turner v.

Safley, 482 U.S. 78, 84-85 (1987) (recognizing that operating

state prison is “peculiarly within the province of the

legislative and executive branches of government”).

The Ninth Circuit has run roughshod over this Court’s

federalism jurisprudence. Simply put, its decision here

instructs district courts that federalism places no meaningful

restraints on the exercise of their remedial power for

violations of consent decrees, and even authorizes these

courts to order a state agency to sacrifice its participation in

cooperative federalism programs.°

More specifically, the Ninth Circuit’s opinion announces

two principles of law that cannot be squared with this Court’s

jurisprudence. First, although this Court has held that federal

law must preserve a state’s freedom of choice about

participating in a cooperative federalism program, the Ninth

Circuit holds that a district court, in fashioning a consent

decree remedy, may strip a state agency of its choice to

participate in such a program.

5. At the outset, it should be noted that the violation of the

consent decree at issue is not a violation of the law. Rather, it is an

alleged violation of the express terms of the consent decree, which

provided that MTA would meet specified load factor targets on MTA’s

buses. App. A, at 3-11. At most, this is a violation of contract, and

even that technical language was subject to different interpretations.

App. A, at 7, n.2.

5

Second, the Ninth Circuit incorrectly holds that a local

agency settling litigation through a consent decree (even

when it does so on its own initiative without any adjudication

or admission of wrongdoing) thereby waives all federalism-

based objections to whatever remedies a district court might

devise for violations of that decree. This ruling simply cannot

be squared with this Court’s decisions declaring that federal

courts, when considering remedies against state agencies for

actual violations of federal law, must consider the federalism

interest of those agencies. Under the Ninth Circuit’s illogical

approach, state agencies that have violated no law enjoy less

protection from federalism principles than agencies found

to have violated the law.

The Ninth Circuit’s rulings on cooperative federalism

and consent decree waiver have drastic implications. By

authorizing federal courts to order state agencies to. forgo

the federal funding they receive from cooperative federalism

programs, the Ninth Circuit has put in jeopardy the lifeblood

of hundreds of local and state agencies nationwide. And by

instructing state and local agencies that they will

automatically waive their federalism-based rights whenever

they sign a consent decree, the Ninth Circuit has created a

powerful disincentive for entering into consent decrees, and,

thus, put in jeopardy the most important and effective means

for settling civil rights and other institutional litigation.

In order to conform the law of the Ninth Circuit with

this Court’s rulings, and to avoid the serious and widespread

practical consequences of the Ninth Circuit’s decision, we

urge this Court to grant the Petition for Certiorari.

6

ARGUMENT

I. THOUGH SOUTH DAKOTA v. DOLE REQUIRES

THAT STATES RETAIN THE CHOICE TO

PARTICIPATE IN COOPERATIVE FEDERALISM

PROGRAMS, THE NINTH CIRCUIT AUTHORIZES

DISTRICT COURTS TO STRIP STATES OF THAT

CHOICE

In Pennhurst State School and Hospital v. Haiderman,

451 U.S. 1 (1981), this Court held that federal financial

incentives designed to influence state policy choices may

comport with principles of cooperative federalism because

they “enable the States to exercise their choice knowingly,

cognizant of the consequences of their participation.”

Id. at 17. More recently, in South Dakota v. Dole, 483 U.S.

203, 207 (1987), the Court applied Pennhurst in recognizing

that choice is essential to programs by which Congress

employs its spending “power ‘to further broad policy

objectives by conditioning receipt of federal moneys upon

_ compliance by the recipient with federal statutory and

administrative directives.’” Dole, 483 U.S. at 206 (quoting

Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)). For such

cooperative federalism programs to remain constitutional,

however, it is critical that “the residents of the State retain

the ultimate decision as to whether or not the State will

comply” with federal funding mandates. New York v. United

States, 505 U.S. 144, 167-69 (1992).

The Ninth Circuit, in its cavalier treatment of federalism

concerns, turns these precedents upside-down. While this

Court’s decisions make a state’s freedom of choice the sine

qua non of cooperative federalism programs, the Ninth

Circuit holds that, precisely because a state has that freedom

7

of choice, a district court may strip it of that choice.

According to this convoluted reasoning, losing the chance

to participate in cooperative federalism programs does not

implicate any federalism principle unless the district court’s

order requires a local agency to violate federal law; failing

to satisfy funding requirements, in the Ninth Circuit’s

opinion, is not such a violation. Thus, in rejecting MTA’s

claim that the district court overstepped its authority in

fashioning a remedy that jeopardizes MTA’s participation in

cooperative federalism, the Ninth Circuit blithely declared:

[T]he federal and state laws to which MTA refers

are simply funding provisions with which MTA

may choose to comply. The reward for compliance

is state and federal funding. However, failure to

follow the requirements of the funding mandates

is not a violation of law. At most, [the district

court’s order] might disqualify MTA from

entitlement to receive funds. . . . See South Dakota

v. Dole, 483 U.S. 203 (1987) (emphasis added).

App. A, at 19-20.

As Judge Cynthia Holcomb Hall recognizes in her

dissent, the majority’s endorsement of a district court’s

unilateral power to abrogate a state’s participation in such

programs conflicts with the principles underlying cooperative

federalism and flies in the face of this Court’s jurisprudence:

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

8

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 government 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 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.

App B., at 40.

Judge Hall’s logic is impeccable. Without apparent irony,

the Ninth Circuit has now authorized district courts to do

exactly what Dole and other cases forbid Congress to do —

namely, to strip a state of the choice whether to participate

in cooperative federalism programs.

The Ninth Circuit’s logic, by contrast, makes no sense

whatsoever. The challenge MTA presented to that Court was

, whether a district court could impose a remedy that forced a

local agency to forego federal funding provided through a

cooperative federalism program. The Ninth Circuit’s answer

— that under Dole the district court did not require MTA to

violate federal law — is no answer at all. The power of a

federal court to order a state agency to violate federal law is

not the question here; the question is whether a federal court

- may exercise its remedial powers to deprive a local agency

of the freedom of choice guaranteed by this Court’s

federalism jurisprudence. And by focusing on the wrong

_—

9

issue, the Ninth Circuit has left the federalism interests of

states and local entities unrecognized and unprotected.

Importantly, the Ninth Circuit’s flouting of local

authority is likely to have widespread practical consequences

for the operation of state and local agencies such as MTA.

Through funding mandates, Congress holds out a carrot to

state governments. By agreeing to comply with conditions

these federal laws impose, states may receive vitally

important federal funding through a system that is “replicated

in numerous federal statutory schemes.” New York v. United

States, 505 U.S. at 167 (citing the Clean Water Act, the

Occupational Safety and Health Act, the Resource

Conservation and Recovery Act of 1976, and the Alaskan

National Interest Lands Conservation Act as examples).

Hundreds of millions of dollars are provided to the states

under these statutory schemes, and they form a substantial

portion of the budgets of state agencies including, as here,

local transportation authorities.° Recognizing the critical

importance of federal funding, the California state legislature

has ordered local transportation entities to “take all action

necessary to obtain the maximum amount of funding

available” in the form of discretionary grants from the

United States Department of Transportation. Cal. Pub. Util.

Code § 130305.’

6. For instance, for fiscal year 2002, federal grants will make

up approximately $441 million of the MTA’s budget. By comparison,

projected revenue from fares amounts to only $243 million of the

MTA’s 2002 budget.

7. Section 130305 of the California Public Utilities Code states

that the Public Utilities Commission shall take all action necessary

to obtain funds pursuant to 49 U.S.C. § 1602. The provisions of

section 1602 has since been incorporated into 49 U.S.C. § 5309.

10

In short, the Ninth Circuit’s decision potentially allows

a federal district court to wreak havoc with any local agency

that enters into a consent decree. And that raises another

fundamental issue of federalism repeatedly emphasized in

this Court’s rulings. As Judge Hall recognizes, “taking the

decision ... out of MTA’s hands ... raise[s] troubling

political accountability concerns.” App. B, at 40-41.

These concerns flow directly from this Court’s decision

in New York v. United States, which explained that, by giving

states the choice of complying with federal funding mandates,

“state governments remain responsive to the local electorate’s

preferences.” New York v. United States, 505 U.S. at 168.

In other words, if the citizens do not like the choice, they

may elect officials who will better represent the citizens’

interests. Jd. If, however, the federal government strips the

state of that choice, “the accountability of both state and

federal officials is diminished.” Jd. When Congress supplants

the authority of state agencies:

[I]t may be state officials who will bear the brunt of

public disapproval, while the federal officials .. .

remain insulated from the electoral ramifications of

their decision. Accountability is thus diminished

when, due to federal coercion, elécted state officials

cannot regulate in accordance with the views of the

local electorate in matters not pre-empted by federal

regulation.

Id, at 169. By the same logic, when a federal court strips a

state of choice, accountability also is diminished. Cf O’Brien

v. Massachusetts Bay Transportation Authority, 162 F.3d 40,

44 (1st Cir. 1998) (“it is difficult to fathom . . . how forcing

a State agency to forego billions of dollars in federal subsidies

11

would render its hierarchs more accountable to the

citizenry”).* That is precisely what happened here.

By denying states their freedom of choice to participate

in cooperative federalism programs, the Ninth Circuit has

effectively sanctioned exactly the shift in political

accountability this Court’s decisions warn against. If the

district court’s order results in an overall decline in

transportation service or a fare increase’ or if it causes

8. O'Brien is not directly in conflict with the Ninth Circuit, because,

although it also involved federal funding, it was decided on the settled

ground that federal courts have no power to enforce state constitutions.

Pennhurst, 451 U.S. 1. In O’Brien, the First Circuit refused to enjoin a

state agency from accepting federal transportation funds because the

conditions to acceptance of those funds might conflict with the

Massachusetts Declaration of Rights. What is instructive, however, is

that the court recognized that depriving the state of federal funds would

leave the state with unappetizing options for making up the shortfall

such as raising taxes, laying off employees, and ceasing construction

and improvements. Jd. O'Brien said that a federal court should not place

states in that position. “[I]f such dire remedies are to be implemented,

that is a decision for Massachusetts to make, not for a federal court to

impose.” Jd.

9. Ironically, as Judge Hall explains, the majority fails to consider

that the loss of funding as a result of the remedial measures might threaten

MTA’s ability to comply with the remedial order. App. B, at 39-40.

Consistent with the lip service it pays to cooperative federalism, the

majority never considers where MTA is supposed to find the money to

purchase and operate hundreds of new buses. As a practical matter, this

is a significant consideration. Implicit in cases like Dole and New York

v. United States is the notion that a state, when it exercises its choice to

forego federal funding, can make up those funds through other means.

New York v. United States, 505 U.S. at 168; see also O’Brien, 162 F.3d

at 44 (discussing how state would have to find a way to make up for loss

of transportation funds if ordered to forego federal funding).

12

problems outside the field of transportation, local officials will

bear the brunt of their constituents’ displeasure even though

responsibility for these problems will properly lie with the

district court. This basic unfairness that the Ninth Circuit has

sanctioned is undemocratic and unconstitutional.

II. IN RULING THAT A PARTY TO A CONSENT DE-

CREE WAIVES ALL MEANINGFUL FEDERALISM

OBJECTIONS TO A DISTRICT COURT’S REME-

DIAL AUTHORITY, THE NINTH CIRCUIT FLOUTS

THIS COURT’S PRECEDENTS, VIOLATES BASIC

NOTIONS OF JUDICIAL RESTRAINT, AND DIS-

COURAGES THE SETTLEMENT OF LITIGATION

In keeping with its total disregard of federalism concerns,

the Ninth Circuit’s decision contains a second and equally

problematic holding. According to the Ninth Circuit, whenever

a local agency signs a consent decree, even on a voluntary basis,

it automatically waives its federalism objections to whatever

remedial measures a district court might order for alleged

violations of the decree.

The Ninth Circuit’s holding cannot be reconciled with this

Court’s precedents. As this Court has made clear, even an agency

that has violated the Constitution may still challenge an exercise

of remedial power on federalism grounds. In Milliken v. Bradley,

433 U.S. 267 (1977), for example, this court held that a district

court fashioning a remedial decree for an adjudicated violation

of the equal protection clause “must take into account the

interests of state and local authorities in managing their own

affairs, consistent with the Constitution.” Jd. at 280-81; see also

Missouri v. Jenkins, 495 U.S. 33, 50-51 (1990). In short,

federalism is one of the indispensable “equitable principles”

that a district court must observe in exercising its remedial

power. Milliken, 433 U.S. at 280.

13

Paradoxically, under the Ninth Circuit’s holding, a party

that voluntarily enters into a consent decree without admitting

or being found to have violated any law enjoys less federalism-

based protection than a party actually found in violation of

federal law. According to the Ninth Circuit, the mere act of a

state agency signing a consent decree in the spirit of compromise

“relieves many federalism concerns.” This is particularly true

with respect to a district court’s power to remedy violations of

the terms of the consent decree. In this respect, once a state

agency “consents to this form of dispute resolution,” its

federalism interest in managing its own affairs is completely

satisfied so long as the district court, in exercising its remedial

powers, permits the agency to submit a proposed remedy.

App. A, at 19. In other words, the district court is relieved of all

federalism constraints in fashioning a remedy if it permits a

state agency to submit a proposal, which the court is free to

reject — as it did here. In sum, under the Ninth Circuit’s decision,

by signing a consent decree, a state agency waives all substantive

federalism objections to a district court’s authority to fashion

remedies for violations of that decree.

Here, the Ninth Circuit betrays a fundamental mis-

understanding of waiver in the context of a consent decree.

Naturally, when a party signs a consent decree, it waives

objections to the actual terms of that agreement. But the act of

signing a voluntary consent decree does not waive federalism-

based objections to remedies not contained in the decree itself.’

10. This is particularly relevant here, because the consent decree

in this case nowhere requires MTA to purchase buses if it fails to

meet a load factor target. See generally Petition for a Writ of Certiorari

of Petitioner Los Angeles County Metropolitan Transportation

Authority, at 3-5, 13-15. For this reason, any purported waiver is

(Cont’d)

14

To hold otherwise (as the Nint& Circuit has) is to confuse the

actual terms of a decree with the lawful means by which a

court may remedy alleged violations. As a result, despite the

principles of judicial restraint that highlight this Court’s

federalism jurisprudence, the Ninth Circuit has sanctioned

the exercise of virtually unlimited judicial power against state

and local agencies when enforcing consent decrees.

Missouri v. Jenkins illustrates the error in the Ninth

Circuit’s approach. In Jenkins, after a lengthy trial a state

and local school district were found to have operated a

segregated school district. Jd. at 37. To eliminate the vestiges

of discrimination, the district court directly ordered a

tax increase to finance a desegregation plan. Jd. at 38-42.

On appeal, this Court reversed this portion of the order

because it “contravened the principles of comity that must

govern the exercise of the District Court’s equitable

discretion.” Jd. at 50. Moreover, “although the ‘remedial

(Cont’d)

unlike the waiver applied in the United States v. City of Yonkers, 856

F.2d 444 (2d Cir. 1988), rev’d sub nom on other grounds, Spallone

v. United States, 493 U.S. 265 (1990), a case upon which the Ninth

Circuit relies. In Yonkers, the city entered into a consent decree that

expressly and specifically mandated that it pass implementing

legislation to build public housing. When it failed to comply, the

district court held the city council in contempt until it passed that

legislation. On appeal, the Second Circuit held that the city council

could not assert federalism objections to the district court’s order

which simply “was carrying out the terms of the Consent Judgment.”

Id. at 454. “By its approval of the Consent Judgment, the City Council

itself selected the remedy of implementing legislation and cannot

complaint that the District Court approved the agreement.” Jd.

This is very different than the current case where the district court

approved a remedy selected by a special master that is not set forth

in the express terms of the agreement.

15

powers of an equity court must be adequate to the task, . . .

they are not unlimited,’ ... and one of the most important

considerations governing the exercise of equitable power is

a proper respect for the integrity and function of local

government institutions.”"' Jd. at 51 (quoting Whitcomb v.

Chavis, 403 U.S. 124 (1971)).

As noted above, Jenkins is not alone in applying

federalism principles to a district court’s choice of remedies

after finding a federal law violation. Although in Milliken,

this Court upheld a district court’s remedial order in the

context of an adjudicated constitutional violation, this Court

emphasized the “inherent limitations[s] upon federal judicial

authority” and demanded that they consider the state’s

federalism interests when imposing remedies. Milliken, 433

U.S. at 280-82; see also Rufo v. Inmates of Suffolk County

Jail, 502 U.S. 367, 389 (1992) (“Federal courts may not order

States or local governments, over their objections, to

undertake a course of conduct not tailored to curing a

constitutional violation that has been adjudicated.”)

11. In Jenkins, in a portion of the opinion supported by a five-

to-four majority, this Court did hold that the district court would

have the power to issue an order requiring a school district to raise

taxes above state-imposed tax limits “where there is a reason based

in the Constitution for not observing the statutory limitation.” Jenkins,

495 U.S. at 52-58. In rejecting the majority’s decision on this point,

Justice Kennedy, in a concurrence, argued that the “casual embrace

of taxation imposed by the unelected, life-tenured Federal Judiciary

disregards fundamental precepts for the democratic control of public

institutions.” Jd. at 58-59 (Kennedy, J., concurring). As Justice

Kennedy explained, “federalism concerns” counseled “against the

[majority’s] analysis.” Jd. at 68 (Kennedy, J., concurring). Indeed,

when “judicial discretion is to provide the sole limit on judicial

remedies, that discretion must counsel restraint.” Jd. at 75 (Kennedy,

J., concurring).

ee

16

As these cases establish, courts must consider federalism

concems and exercise judicial restraint when imposing remedies

even for found constitutional violations. A fortiorari, those same

principles must apply when a federal court imposes remedial

measures pursuant to a voluntary consent decree in the absence

of an admitted or adjudicated violation.'? The Milliken-Jenkins

line of cases simply does not square with the Ninth Circuit’s

holding that entry into a consent decree waives federalism

objections to whatever remedies a district court might impose.

The consequences of the Ninth Circuit’s overbroad waiver

doctrine in the context of consent decrees will be serious and

widespread. As this Court knows well, consent decrees play a

critical role in the efficient and appropriate resolution of civil

rights and institutional reform litigation. E.g., Local 93, 478

U.S. at 523-24, n.13 (explaining the benefits of consent decrees

12. Because federalism concerns remain even when a violation

of federal law occurs, it would not change the analysis if the Ninth

Circuit had effectively read the consent decree to admit a violation

of federal law. Yet even if the existence of a violation were relevant,

none exists here and none can be inferred. To read into the consent -

decree in this case such an admission or finding where none exists

would be inconsistent with this Court’s rulings in United States v.

ITT Continental Baking Co., 420 U.S. 223 (1975) and United States

v. Armour & Co., 402 U.S. 673 (1971), that consent decrees “should

be construed basically as contracts without reference to the

legislation” that the plaintiffs “originally sought to enforce but never

proved applicable through litigation.” 177 Continental Baking Co.,

420 U.S. at 236-37; also Armour, 402 U.S. at 681-82 (because a

consent decree is a “compromise” between the competing purposes

of the parties, “the decree itself cannot be said to have a purpose”).

“[I}t is the agreement of the parties, rather than the force of the law

upon which the complaint was originally based, that creates the

obligations embodied in a consent decree.” Local Number 93,

International Ass’n of Firefighters v. Cleveland, 478 U.S. 501, 522

(1986).

17

and recognizing that for the reasons specified, “consent decrees

have become widely used as devices to facilitate settlement”).

In ruling that state agencies entering into consent decrees waive

their federalism objections to proposed district court remedies,

the Ninth Circuit dramatically weakens this vital tool for dispute

resolution. State and local agencies will be exceedingly reluctant

to enter into consent decrees knowing that, by opting for

settlement, they will be surrendering to a district court unlimited

remedial authority over their budgets and operations. And, thus,

in the absence of action by this Court, constructive solutions to

civil rights and other institutional reform issues will too often

give way to protracted, expensive, and divisive litigation.

Such a result is not merely unfortunate; it contravenes the

“expressed congressional preference for voluntary remedial

action,” Jd. (noting that Title VIT favors voluntary remedial

action).

CONCLUSION

For the foregoing reasons, Amicus respectfully requests that

the Petition be granted.

Respectfully submitted,

WILuiaM A. Norris

Counsel of Record

EDWARD P. LAZARUS

Jessica M. WEISEL

Akin, Gump, STRAUSS,

HAvER & FELp, L.L.P.

2029 Century Park East

Suite 2400

Los Angeles, CA 90067

(310) 229-1000

Attorneys for Amici Curiae

18

DarOLp D. PIEPER

General Counsel

Foothill Transit

RICHARDS WATSON & GERSHON

355 S. Grand Avenue

40th Floor

Los Angeles, CA 90071-3101

(213) 626-8484

Attorney for Foothill Transit

Sania Rusio CARVALHO

City Attorney

City of Azusa and

City of Claremont

Best Best & Kriecer LLP

3750 University Avenue

Riverside, CA 92501

(909) 686-1450

Attorney for City of Azusa

_ and City of Claremont

ARNOLD M. ALVAREZ-GLASMAN

City Attorney

City of Baldwin Park and

City of Montebello

ALVAREZ-GLASMAN & COLVIN

100 N. Barranca Avenue

Suite 1050

West Covina, CA 91791

(626) 858-9121

Attorney for City of Baldwin Park,

City of Montebello and Montebello

Bus Lines

19

MICHAEL JENKINS

City Attorney

City of Diamond Bar

Jenkins & Hocin, LLP

1325 Nineteenth Street

Manhattan Beach, CA 90266

(310) 939-1736

Attorney for City of Diamond Bar

Davip Ropert McEwEN

City Attorney

City of Lancaster

STRADLING YOCCA CARLSON

& Rautn, P.C.

660 Newport Center Drive,

Suite 1600

Newport Beach, CA 92660

(949) 725-4000

Attorney for City of Lancaster

MICHAEL G COLANTUONO

City Attorney

City of Monrovia

NEUFELD, JAFFE, LEVIN

& CoLANTUONO, LLP

555 W 5th Street, 30th Floor

Los Angeles, CA 90013

(213) 533-4141

Attorney for City of Monrovia

20

J. KENNETH BROWN

City Attorney

City of San Dimas

Brown, WINFIELD & CANZONERI, INC.

300 S. Grand Avenue, Suite 1500

Los Angeles, CA 90071-3125

(213) 687-2100

Attorney for City of San Dimas

MARSHA JONES MOuTRIE

City Attorney

City of Santa Monica

OFFICE OF THE Crry ATTORNEY

1685 Main Street, 3rd Floor

Santa Monica, CA 90401-3295

(310) 458-8336

Attorney for City of Santa Monica

THomas J. WARD

ANTELOPE VALLEY TRANSIT AUTHORITY

MICHELIZz1, SCHWABACHER,

WARD AND BIANCHI

767 W. Lancaster Boulevard

Lancaster, CA 93534

(661) 948-5021

Attorney for Antelope Valley

Transit Authority

Scott E. NICHOLS

City Attorney

City of Walnut

ALVAREZ-GLASMAN & COLVIN

100 N. Barranca Avenue

Suite 1050

West Covina, CA 91791

(626) 858-9121

Attorney for City of Walnut