Los Angeles County Metropolitan Transportation Authority v. Labor/Community Strategy Center Brief in Opposition to Certiorari
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January 1, 2001

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Brief Collection, LDF Court Filings. Los Angeles County Metropolitan Transportation Authority v. Labor/Community Strategy Center Brief in Opposition to Certiorari, 2001. 079bd8a9-bb9a-ee11-be36-6045bdeb8873. LDF Archives, Thurgood Marshall Institute. https://ldfrecollection.org/archives/archives-search/archives-item/7c2869ac-9a9d-4757-8927-0a4e98933f60/los-angeles-county-metropolitan-transportation-authority-v-laborcommunity-strategy-center-brief-in-opposition-to-certiorari. Accessed June 17, 2025.
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No. 01-1054 In The Supreme (Emirt nf tije United States L os Angeles County Metropolitan Transportation Authority, et al„ Petitioners, v. Labor/Community Strategy Center, et ai, Respondents. On Petition for Writ of Certiorari to the United States Court of Appeals for the Ninth Circuit BRIEF IN OPPOSITION TO CERTIORARI Elaine R. Jones Director-Counsel Theodore M. Shaw Norman J. Chachkin NAACP Legal Defense & Educational Fund Inc. 99 Hudson Street, 16th floor New York, NY 10013 (212) 965-2200 :E. Richard Larson Erica J. Teasley NAACP Legal Defense & Educational Fund, Inc. 1055 Wilshire Boulevard, Suite 1480 Los Angeles, CA 90017 (213)975-0211 Constance L. Rice English, Munger & Rice 1545 Wilshire Boulevard, Suite 800 Los Angeles, CA 90017 (213)989-1300 * Counsel o f Record Attorneys for Respondents -1- C O U N T E R -ST A T E M E N T O F Q U ESTIO N S PR E SE N T E D N either o f the Questions framed by the Petitioners is presented on the record made in this matter: 1. Contrary to Petitioners’ contention that the m ajority below “disobey [ed]” decisions o f this Court “by construing the [Consent] Decree solely as a judgm ent rather than as a contract for enforcement purposes,” the record (including the critical ruling by the Special M aster that Petitioners failed to include in the Appendix to their Petition) demonstrates indisputably that the Special M aster, whose decisions were affirm ed by the D istrict Court and the Court o f Appeals, in fact applied contract law principles to discern the obligations placed upon Petitioners by the Decree. 2. Petitioners’ second Question — whether the rem edy fashioned by the Special M aster and approved by the D istrict Court and the Court o f Appeals violated principles o f federalism by intruding upon Petitioners’ discretionary authority — is founded upon factual assumptions (/. e., that the rem edy was not necessary to im plem ent the Decree and was beyond Petitioners’ financial capabilities) that were rejected by the Special M aster and both courts below. These findings are not only not “clearly erroneous” but are well supported on the record. Under these circumstances, and because Petitioners have made no “very obvious and exceptional showing o f error,” th is hypothetical question does not m erit review by this court. Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 841 (1996), quoting Graver Tank & Mfg. Co. v. Linde Air Products Co., 336 U.S. 271, 275 (1949). -li- PARTIES TO THE PROCEEDING Petitioners state (Pet. at ii) that: “A ll parties appear in the caption o f the case on the cover page.” H ow ever, because that caption is both outm oded and in error, it does no t provide a correct listing o f parties to this proceeding. T aking into account the automatic substitution o f officials o f the corporate Petitioner Los Angeles County M etropolitan Transportation A uthority pursuant to Fed. R. Civ. P. 25(d), as w ell as the erroneous listing o f four individuals w ho sought, bu t were denied, intervention below in 1994 (H enry Frederick Ramey, Jr., O. Howard W atts, W illiam Tut Hayes, and V ictor Dibas), the following is a proper listing o f parties to the proceeding in this Court: 1. Bus Riders Union, a charitable, non-profit, non-stock corporation, Respondent; 2. Pearl Daniels, Respondent; 3. Maria Guardado, Respondent; 4. Korean Im m igrant W orkers Advocates, a charitable, * non-profit, non-stock corporation, Respondent; 5. Labor/Comm unity Strategy Center, a charitable, non-$ profit, non-stock corporation, Respondent; 6. Los Angeles County M etropolitan Transportation Authority, Petitioner; 7. Roger Snoble, C hief Executive O fficer o f the Los Angeles County M etropolitan Transportation Authority, Petitioner; -111- 8. Southern Christian Leadership Conference o f Greater Los Angeles, a charitable, non-profit, non-stock corporation, Respondent; 9. Naom i Zelada, Respondent; and 10. Ricardo Zelada, Respondent. N o parent or publicly held company therefore owns any stock in any o f these corporations. See Sup. Ct. R. 29.6. Counter-Statem ent o f Questions P resen ted ............................. i Parties to the Proceeding ....................................................... .... . ii Table o f Authorities . .....................................................................v Counter-Statem ent o f the Case ................... ................ 1 1. Background o f the P ro c e e d in g ................................. 1 2. The Consent Decree .................................................. 3 3. Enforcem ent Proceedings ................................... .... 5 4. Challenge to the Special M aster’s Authority . . . 9 5. Review by the D istrict Court and C ourt o f Appeals .....................................................................12 REASONS FO R DENYIN G TH E W RIT . ................. 14 I Contrary To Petitioners’ Assertions, The Special Master, District Court, And Court Of Appeals All Construed The T era s Of The Consent Decree By Applying Principles Of Contract Interpretation ......................................... 14 II The Second Question Presented By Petitioners Is Dependent Upon Assumptions That Are Contrary To Factual Findings Concurred In By Two Courts Below And Is Therefore Inappropriate For Review By This Court ................................................... 18 Conclusion .....................................................................................25 -iv- T A B L E O F C O N T E N T S Page -V- Appendix — June 24, 1998 Procedural Order o f the Special M aster ................................................. . l a July 15, 1998 M em orandum Decision and Order o f Special M aster Re Standards for Compliance ................... 7a August 25, 1998 O rder o f Special M aster Re Plaintiffs’ M otion for Reconsideration o f July 15, 1998 O r d e r ............................ 24a July 9, 1998 M TA B rief re Load Factor Compliance .....................................................................41a TABLE OF AUTHORITIES Page Cases: Benjamin v. Jacobson, 172F.3d. 144 (2d Cir. 1 9 9 9 ) ................................... 15n County o f Alameda v. Weinberger, 520 F.2d 344 (9th Cir. 1 9 7 5 ) .......................... ................2 E.E.O.C. v. New York Times Co., 196 F.3d 72 (2d Cir. 1 9 9 9 ) ........................................ 17n Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830 (1 9 9 6 ) .................................................. i, 22 Golden West Baseball Co., v. City o f Anheim, 25 Cal. App. 4th 11 ( 1 9 9 4 ) .......................................... 16 -VI- T A B L E O F A U T H O R IT IE S (continued) Page Cases (continued): Graver Tank & Mfg. Co. v. Linde Air Products Co., 336U .S . 271 (1 9 4 9 ).............. ......................... .. i, 22 Harris v. City o f Philadelphia, 137 F.3d 209 (3d Cir. 1 998 ) ........................ ............. 17n Lab or/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority, No. CV 94-6936 (TJH (Mcx), Findings o f Fact and Conclusions o f Law re: Preliminary Injunction (C.D. Cal. Sept. 21 ,1994) ........................................... 2n Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority, No. CV 94-6936 (TJH (Mcx), M emorandum Decision and Recommendations o f the Special M aster In Re Late N ight and Owl Service M odifications (C.D. Cal. Feb. 24, 1 9 9 8 ) ................ 8n Musso v. University o f Minnesota 105 F.3d 409 (8th Cir. 1 9 9 7 )................................. . . 17n United States v. Armour & Co., 402 U.S. 673 (1 9 7 1 )........................................ 14,16,17 United States v. ITT Continental Baking Co., 420 U.S. 223 (1975) 14, 15, 16 - V l l - Rules: Fed. R. Civ. P 2 5 ( d ) ...................................................................... ii Fed. R. Civ. P. 5 3 ................................................................. .. 10 Sup. Ct. R. 15.2 ............................................................................ 1 Sup. Ct. R. 29.6.......................................................................... iiin Other Authorities: Appellant Los Angeles County M etropolitan Transportation Authority’s Reply Brief, Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority, 263 F.3d 1041 (9th Cir. 2 0 0 1 ) .............................. ................ 24 T A B L E O F A U T H O R IT IE S (continued) Page 1 COUNTER-STATEMENT OF THE CASE Petitioners’ Statem ent is replete with self-serving and incorrect assertions, factual om issions, and m isrepresentations o f the record, all unsupported by record citation. W e lim it our comments on such m atters to those “that bear[ ] on w hat issues properly would be before the Court i f certiorari w ere granted,” Sup. Ct. R. 15.2. 1. Background of the Proceeding. This action was filed by Respondents on A ugust 31, 1994, seeking “permanently to enjoin the [Petitioners] from operating a discriminatory two tier, separate and unequal system o f public transportation—one for poor m inority bus riders and another designed to serve predom inantly white and relatively wealthy rail riders” (Complaint, f 5). A s the m ajority opinion below summarized (Pet. 3a1): The suit alleged that M TA was spending a disproportionately large portion o f its budget on rail lines and suburban bus system s that w ould prim arily benefit white suburban comm uters, while intentionally neglecting inner-city and transit-dependent m inority bus riders who relied on the city bus system. The lawsuit was triggered by M T A ’s decision to spend several hundred m illion dollars on a new rail line, foregoing an opportunity to reduce overcrowding problem s on city buses, while at the sam e tim e increasing bus fares and elim inating m onthly discount passes. On September 21,1994, the D istrict Court granted prelim inary * ‘Citations in this form are to the separately bound Appendix to Petition for a Writ of Certiorari. 2 injunctive relief to Respondents.2 “In October 1996, after over tw o years o f discovery and just before a trial was scheduled to 2The District Court made the following Findings and Conclusions supporting its actions: 6. Plaintiffs have presented the Court with more than sufficient evidence to meet their burden of preliminarily showing that MTA’s actions have adversely impacted minorities; that MTA’s actions were not justified by business necessity; and that the MTA has rejected less discriminatory alternatives. 7. Through their evidence, plaintiffs raise serious questions going to the merits of their disparate impact claim under Title VI, as well as their intentional discrimination claim under Title VI, the Fourteenth Amendment, and 42 U.S.C. §§ 1981 and 1983. A serious question is one that is so substantial and difficult as to warrant more deliberate investigation and, thus, creates a fair basis for litigation. County o f Alameda v. Weinberger, 520 F.2d 344, 349-50, n . n ^ C i r . 1975). 8. MTA, however, has not come forward with sufficient evidence to rebut the plaintiffs’ initial evidentiary showing. Rather, MTA provided the Court with mere conclusory statistics without identifying the source or age of the raw data used to reach the statistical results and without specifying the methodology used to gather the data. Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority, No. CV 94-6936 TJFI (MCx), Findings of Fact and Conclusions of Law re: Preliminary Injunction, at 4-5 (C.D. Cal. Sept. 21, 1994). Compare Petitioners’ claim that following commencement of this lawsuit, “MTA produced substantial evidence in the district court that the assumed [sic] disparity in the treatment of people of color and white bus and train riders was nonexistent. Respondents introduced no contrary evidence.” (Pet. at 2 n. 1.) 3 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” (Pet. 3a). 2. The Consent Decree. The Decree, which was approved by the District Court, contains a set o f “Basic Principles and Objectives” which M TA prom ised to “work w ith representatives o f the plaintiffs’ class in im plem enting” (Pet. 173a-174a), specific “Service Improvements” to be undertaken by Petitioners (Pet. 175a-179a), and provisions for m aintaining or modifying M TA ’s fare structure (Pet. 180a- 182a), as well as sections concerning im plem entation and enforcem ent o f the Decree, etc.3 The present proceeding principally concerns one part o f the “Service Improvements” section o f the Decree: “Reducing [Bus] Overcrowding By A dding N ew Service” (Pet. 175a-177a), containing four paragraphs, each o f which bears upon the current controversy. The first paragraph establishes intermediate and final goals for “reduction in levels o f crowding on board buses,” expressed as “reduction o f the maximum load factor ceiling fo r all bus routes,” with the first target reduction to be achieved by D ecem ber 31, 1997 (Pet. 175a [emphasis added]). The next paragraph delineates a precise definition o f “load factors” to be used in measuring compliance: T o r example, the Decree both required the establishment of a “Joint Working Group” (“JWG”) with equal representation o f both parties to assist in its implementation (Pet. 182a) and also appointed — subj ect to the District Court’s approval, which was granted— the mediator who had assisted in the negotiation of the settlement as Special Master, to whom disputes arising under the Decree would be referred “for resolution, pursuant to procedures set forth by the Special Master,” subj ect to review by the District Court (id at 183a). 4 2. Load Factor Definition. “Peak load factor” shall m ean (total num ber ofpassengers/total num ber o f seats) which shall be determ ined by com puting the highest ratio o f total num ber o f passengers to total num ber o f seats achieved during any 20 m inute weekday peak period in the peak direction o f travel on each bus line. This load factor com putation w ould be based on a one hour tim e interval during non-peak periods. Target load factors shall not be achieved by by-passing passengers at bus stops. M TA shall conduct ride checks to determine load factors using current M TA procedures and schedules. . . . The JW G may request that M TA collect additional data as appropriate to m onitor compliance w ith the load factor targets. (Pet. 175a-176a [emphasis added].) The third paragraph places responsibility upon M TA to prepare, at least 90 days prior to the beginning o f each fiscal year, a “plan to make available sufficient additional buses and other vehicles to m eet these target load factors” and to take cognizance o f such plans in any “scheduled m odification to its long range plan” (Pet. 176a). It continues: If ridership shall increase by m ore than 15 percent on any bus line M TA shall nevertheless m ake its best efforts to m eet the target fo r that line and the targetfor that line may be deferred for one (and only one) year. (Id. [emphasis added].) The final paragraph concerns any “Failure to M eet Targets” and it provides: 4. Failure to Meet Targets. I f M TA fails to m eet the target load factors fo r all bus lines by the dates in paragraph 1 above, (except those exem pted or deferred under paragraph 3 above), M TA shall m eet the 5 target as soon as possible and reallocate sufficient funds from other program s to m eet the nex t lower target load factor as scheduled. The reprogram m ed funds, w hich m ay include but not be lim ited to revenues from Propositions A and C discretionary funds, shall be used to meet the target load factors. A ny dispute concerning whether the targets have been m et; or i f the targets have not been met, whether sufficient funds have been reprogram med to m eet the next target will be review ed by the JW G. W [ I f /s / Bliss] the JW G cannot resolve the matter it will be referred to the Special M aster. The failure o f M TA to m eet the target load factors shall not be deemed a changed or unforeseen factual condition for purposes o f seeking a m odification o f this Consent Decree by MTA. (Pet. 177a [emphasis added].) 3 . Enforcement Proceedings. A s the m ajority opinion below summarized, [S]oon after the first L[oad]F[actor]T[arget] deadline passed on D ecem ber 31, 1997, the Special M aster was pressed into service. The plaintiffs alleged that M TA had failed to m eet the first LFT. In addition, the parties disputed the m eaning o f the LFTs, the extent to w hich M TA had or had not m et its obligations under the consent decree, and the proper rem edy to achieve compliance with the d ec ree .. . . The Special M aster set out a bifurcated procedure for resolving the m atter. First, the parties were to b rie f the issue o f how to measure compliance with the decree. Second, once the Special M aster had determ ined a m ethod for m easuring compliance, the m atter was to be referred back to the JW G to determine whether M T A had fulfilled its obligations, and to craft a rem edial p lan if it had not. If 6 the JW G could not agree on a rem edial plan, the parties would then subm it their respective rem edial proposals to the Special M aster for resolution o f the issue. (Pet. 7a-8a [footnote om itted].) Accordingly, on June 29,1998, the Special M aster directed the parties to “submit sim ultaneous briefing on the follow ing foundation legal issue” : Under the decree, what is the concrete standard by which the Special M aster is to m easure compliance w ith the target load factor requirem ents? (Opp. A pp .2a4 [em phasis added].) M T A ’s brief, set out in the A ppendix infra (Opp. App.41a-64a), in its very first sentence proposed that “ [t]he primary task for the Special M aster is to devise a standard by which to determine whether the M TA has com plied w ith the target load factor requirem ents o f the Consent Decree” (Opp. App. 45a [emphasis added]). M TA suggested a standard based on a survey o f other bus transit operators that it had conducted in 1997, after the Consent Decree was subm itted and approved (see id. at 50a).5 Only once in its entire b rie f did M TA refer to the standard that was em bodied in the language o f the Consent Decree, which it urged the Special M aster to reject: Under the vague standard existing in the Consent Decree, the M T A -by m eeting the target in m ore than 97% o f the periods m onitored-has been in com pliance with the load factor target requirem ents up to this point 4Citations in this form are to the Appendix to this Brief in Opposition, infra. 5MTA proposed “that the standard for compliance should be a measurement of M TA’s overall compliance rate, per time period, against the industry-wide percentage of service interruptions” (Opp. App. 1 la). 7 in time. I f the Special M aster adopts the criteria set forth herein, the M TA should be given a reasonable period o f tim e to come into conformance w ith this newly proclaimed objective standard. (Opp. App. 54a [emphasis added].) On July 15, 1998, the Special M aster entered an Order Re Standards for Com pliance (Opp. App. 7a-23a) rejecting M T A ’s proposal. Pointing to the repeated references in the relevant portions o f the Consent Decree to reductions in overcrowding for “all bus routes” and “all bus lines.” and the absence o f “language in the Consent Decree which provides for the possibility o f averaging across m ultiple lines” (id. at 9a [underlining in original]), the M aster specifically relied upon principles o f contract interpretation in reaching his conclusion: In the absence o f ambiguity, a. court will interpret a contract or statute according to the clear, explicit m eaning o f the words used. See e.g., Avemco Ins. Co. v. Davenport, 140 F.3d 839, 842 (9th Cir. 1998); Perrin v. United States, 444 U.S. 37, 42 (1979). The preceding provisions [of the Consent Decree] allow for only one meaning: compliance with the load factor ceiling is required for all bus routes except those exempted under the provisions o f II.A.3. (Opp. App. at 10a.)6 The M aster requested that the JW G (see 6See also Opp. App. at 34a (Order re Plaintiffs’ Motion for Reconsideration of the Special Master’s July 15, 1998 Order re Compliance Standards) (“Extrinsic evidence supporting an interpretation to which an agreement is not reasonably susceptible is not admissible. Barris Indus., Inc. v. Worldvision Enters., Inc., 875 F.2d 1446 (9* Cir. 1989). The declarations of Dana Woodbury and Harold Hirsch, submitted by the MTA on July 8, 1998, constitute such inadmissible extrinsic evidence because they support 8 supra pp. 5-6) determine, pursuant to the compliance standards enunciated in his Order, whether the initial load factor target had been m et by M TA (Opp. App. 18a). “On Septem ber 8 and 9, 1998, the JW G found that the M TA was not in com pliance with the 1.35 LFT for 75 out o f the 79 m onitored M TA bus lines” (Pet. 58a). W hen neither the JW G nor the parties, negotiating directly, were able to reach agreement on appropriate rem edial steps to address the noncompliance, the parties subm itted separate proposals and supporting briefs to the Special M aster. Both parties agreed on the causes o f approxim ately h a lf o f the instances o f noncompliance demonstrated by m onitoring (Pet. 62a-63a), and both agreed that MTA needed to purchase som e num ber o f additional buses (besides replacing unreliable vehicles in its fleet whose repeated breakdowns were a m ajor factor in overcrowding) in order to comply with the load factor MTA’s unreasonable interpretation that the Consent Decree requires compliance based on an averaging across all bus routes.”); Pet. 145a (Special Master’s decision on MTA’s motion for clarification and modification of subsequent remedial order) (“Having reviewed the language of the Consent Decree, the MTA’s arguments and my prior Orders, I continue to find that the standards enunciated in previous Orders are fully in keeping with the MTA’s repeated admonitions that the meaning of a contract is to be gleaned from the language of the writing alone. See also Cal. Civ. Code § 1639.”). In an earlier decision, the Special Master had stated that “the Consent Decree must be ‘construed with reference to ordinary contract principles of the state in which the decree is signed.’ Gates v. Gomez. 60 F.3d 525, 530 (9th Cir. 1995) (citations omitted).” Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority, No. CV 94-6936 TJH (MCx), Memorandum Decision and Recommendations o f the Special Master In Re Late Night and Owl Service Modifications, at 13 (C.D. Cal. Feb. 24, 1998). 9 targets in the Consent Decree.7 Petitioners estim ated the num ber o f additional buses needed at 160 {id. at 72a); Respondents calculated that a m uch larger num ber, 553 new vehicles, would be necessary {id. at 74a). In a M arch 6, 1999 M emorandum Decision and Order {id. at 5 0a-122a), the Special M aster conducted a painstaking analysis o f the extent and causes o f overcrowding on buses, concluding that in addition to replacing unreliable vehicles in its fleet, M TA needed, and was therefore directed, to purchase a total o f 430 additional buses (Pet. 119a). 4. Challenge to the Special Master’s Authority. Petitioners sought reconsideration o f this M arch 6 ,1999 Order by the Special M aster. N ot only did they ask the Special M aster to recalculate and reduce the num ber o f additional buses he had determined were necessary to m eet the targets, but they also challenged the M aster’s authority to do anything except determine “(1) w hether the [load factor] targets have been met, or (2) whether sufficient funds have been reprogram m ed to m eet the next target” (Pet. 136a) (quoting M TA motion). A fter careful consideration, the Special M aster on M ay 14, 1999 granted reconsideration and reduced the num ber o f new vehicles that MTA would be required to purchase to 379 {id. at 157a). The Special M aster rejected the challenge to his remedial authority, relying principally upon the language in § V o f the Consent Decree providing that, in case o f “any dispute arising under any provision o f Sections I through IV o f this Consent Decree” that could not be resolved by either the JW G or the parties’ attorneys, “the attorneys shall refer the m atter to 7The parties’ plans were designed to bring MTA into compliance not only with the first required reduction in overcrowding set by the Consent Decree, but also with the second (June 2000) target (see Pet. 175a), which was rapidly approaching. 10 the Special M aster fo r resolution, pursuant to procedures set forth by the Special M aster” (Pet. 137a [emphasis added]). The M aster rejected Petitioners’ argum ent that his authority was lim ited to the specific subjects m entioned in Section II.A.4. o f the Decree,8 again relying specifically on applicable canons o f contract interpretation in California: The rem edial pow ers described in Section II.A.4 are fully consistent w ith the Special M aster’s dispute resolution authority found in Section V. W ell- established canons o f contract interpretation, embodied in California law, provide that the “whole o f a contract is to be taken together, so as to give effect to every part, i f reasonably practicable, each clause helping to interpret the other.” Cal. Civ. Code § 1641. Reading these tw o sections together, and giving effect to each, it is clear that the Section II rem edial powers authorizing the Special M aster to determ ine whether M TA funds m ust be reprogram m ed supplements, rather than excludes, the Special M aster’s Section V pow er to issue rem edial orders resolving disputes under the Decree. (Pet. 137a-138a [em phasis in original].) The Special M aster also found that the D istrict Court’s Order o f Reference (formally appointing him pursuant to Fed. R. Civ. P. 53 and the Consent Decree) reinforced his authority to issue remedial orders (id. at 138a) and, finally, that M TA itself had previously recognized and acted upon this authority: 8“Any dispute concerning whether the targets have been met; or if the targets have not been met, whether sufficient funds have been reprogrammed to meet the next target wi l l . . . [if not resolved by the JWG] be referred to the Special Master” (Pet. 177a [bracketed language added]). 11 As the Plaintiffs have pointed out, the M T A ’s prior conduct in these proceedings reflects an explicit recognition o f the Special M aster’s authority to resolve disputes and compel the parties to act w hen necessary. M ost notably, in July 1998, the M TA filed a m otion asking the Special M aster to exercise his dispute resolution authority and prohibit the Plaintiffs from organizing a “no seat, no fare” strike. The M TA cited to the Special M aster’s powers under Section V.B. o f the Consent Decree and concluded the following: “Here, the Special M aster was appointed to monitor the parties’ com pliance with, and resolve any disputes arising under, the Consent Decree. (Consent Decree, § V .) The Consent Decree does not impose any lim itations on the Special M aster’s powers or authorities [szc] to effectuate these objectives. Accordingly, the Special Master has the inherent authority to issue orders and resolve disputes raising [sz'c] under the Consent Decree.” (Pet. 139a [emphasis added by Special M aster].) The Special M aster also disagreed w ith M TA ’s contention that the Decree left form ulation o f a rem edy for noncompliance up to the unreviewable discretion o f the agency: M TA attempts to nullify the Special M aster’s agreed- upon authority by misreading Section II.A.3 o f the Decree, which provides that the M TA initially has the discretion to determine how to m eet the load factor requirements. The MTA contends that under this provision it is the sole arbiter o f how to rem edy its own violations. 12 The M TA was fully afforded the initial discretion contem plated by Section II.A.3. From 1996 to the present, the M TA, in its sole discretion, decided what steps to take to com ply w ith the Decree. Those steps, how ever, have been shown to be insufficient. (Pet. 140a-141a [footnote om itted]). The M aster also rejected M T A ’s argum ent that he was required to defer to M T A ’s view s on the rem edy for noncom pliance (Pet. 141a-144a). 5. Review by the District Court and Court of Appeals. Petitioners sought review o f the Special M aster’s Orders in the D istrict Court,9 w hich on September 23, 1999 reduced the num ber o f buses that M TA would be required to purchase pending reconsideration by the Special M aster, and otherwise affirm ed the M aster’s rulings (Pet. 43a-48a).10 The D istrict Court held that the Special M aster and the Court were vested under the C onsent Decree with authority to issue rem edial orders to Petitioners, as a matter of, first, clear statem ent in the D ecree itself; second, judicial estoppel based upon M TA ’s prior request that the M aster issue an injunction 9Section V.B. o f the Consent Decree provides that “Any matter resolved by or referred to the Special Master may be reviewed by the District Court, along with the recommendations of the Special Master, if any, upon motion by either of the parties” (Pet. 183a). 10The District Court specifically affirmed the Special Master’s rejection o f M TA’s claim that it had sole authority to devise remedies for its own noncompliance with the Decree: “By the clear language o f 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.” (Pet. 45a [emphasis in original].) The District Court amended its Order slightly on October 6, 1999 (Pet. 49a). 13 A divided panel o f the Court o f Appeals affirm ed the judgm ent o f the District Court (Pet. la-20a). The m ajority agreed w ith the Special M aster’s determination o f the standard for m easuring com pliance w ith the load factor targets based upon the language o f the Consent Decree {id. at 14a-15a) and rejected M T A ’s argum ent that the M aster lacked pow er to resolve disputes under the Decree and issue rem edial Orders in the event o f noncom pliance {id. at 17a-18a). Judge Hall did not dissent on these questions, writing that “M TA consented to the term s o fth e decree, including the Load Factor Targets ( ‘LFTs’) and the special m aster’s role in resolving disputes” {id. at 22a, 34a). The panel m ajority also found no error in the Special M aster’s factual finding that M TA “had failed to dem onstrate that it lacked sufficient funds to otherwise m eet its statutory obligations” i f it com plied w ith his bus-purchase Order {id. at 15a-16a) and concluded that the M aster’s and District Court’s Orders did no t unduly intrude into the m anagement o f M TA ’s affairs {id. at 18a-20a) “because (1) M TA consented to this dispute resolution, (2) M TA had the opportunity to comply w ith the C onsent Decree but failed to do so, and (3) the rem edial o rder does not require a violation o f state or federal laws” {id. a t 18a). Judge Hall, dissenting in part, recognized that “because o f M T A ’s failure to prepare ap ian that addressed all o f its LFT violations, the special m aster and district court could not fully defer to M T A ’s proposed plan” {id. at 23a, 35a). N evertheless, she view ed the rem edy ordered by the Special M aster as too intrusive because it failed to allow “M TA enough tim e to secure [state and federally required] approvals” to use funds to purchase additional buses “nor made the rem edy contingent against the B us Riders Union; and third, the inherent authority o f a court o f equity to enforce its injunctions (Pet. 44a-45a). 14 upon obtaining them ,” id. at 25a, 37a; see id. at 29a, 41a (same); id. at 27a, 39a (“Although there w as evidence before the court to support the conclusion that M TA had not yet exhausted all possible sources o f funding for new buses, that evidence also showed that M TA w ould have to . . . go through planning and approval processes, the very same types o f funding programs with which the rem edial order prevents M TA from complying”). REASONS FOR DENYING THE WRIT I Contrary To Petitioners’ Assertions, The Special Master, District Court, And Court Of Appeals All Construed The Terms Of The Consent Decree By Applying Principles Of Contract Interpretation Petitioners argue that the Special M aster (see Pet. at 5 n.3), the District Court (see id. at 8), and the Court o f A ppeals (see id. at 10) all disregarded this C ourt’s decisions in United States v. Armour & Co., 402 U.S. 673, 681-82 (1971) and United States v. ITT Continental Baking Co., 420 U.S. 223, 236-37 (1975) “by construing the Decree solely as a ju d g m en t rather than as a contract for enforcem ent purposes” (Pet. at i). But Petitioners cite no language from any o f the opinions below supporting their assertion, as these exam ples from their discussion o f the Court o f A ppeals’ ruling illustrate: Despite petitioners’ discussion o f ITT Continental Baking and Armour & Co., the m ajority held that the Decree should be construed only as ajudgm ent (Pet. at 10 [no citation provided]). Although the M TA called ITT Continental Baking Co. and Armour & Co. to the Court o f A ppeals’ attention, 15 the panel failed to follow or even m ention those cases (Pet. at 11 [no citation provided]). The Court o f Appeals did discuss the status o f the Consent Decree as a judgm ent, but only in the section o f the m ajority opinion setting out the Standard o f R eview (Pet. 13 a), w here it stated that A consent decree is enforceable as a jud icia l decree and “is subject to the rules generally applicable to other judgm ents and decrees.” Rufo v. Inmates o f Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992).[U1 This court review s de novo the district court’s interpretation o f the consent decree, but m ust defer to the district cou rt’s factual findings underlying the interpretation unless they are clearly erroneous [citations omitted]. Id. This language is wholly unexceptionable, simply recognizing that rem edies for violations o f consent decrees are not lim ited to those available for violations o f private contracts because consent decrees approved and issued by courts are injunctions. “Consent decrees and orders have attributes both o f contracts and o f judicial decrees . . . . Because o f this dual character, consent decrees are treated as contracts for some purposes but not for others.” ITT Continental Baking, 420 U.S. at 236 n.10 (citations om itted).12 “ Petitioners assert that “[t]he majority opinion cites Rufo v. Inmates o f Suffolk County Jail, 502 U.S. 367, 378, 112 S. Ct. 748, 116 L. Ed. 2d 867 (1992), to support its conclusion that the Decree should be interpreted only as a judgment” (Pet. at 11 [emphasis added]). That is a blatant misrepresentation o f what the majority opinion — which does not include the word “only” — says. nSee,e.g.,Benjaminv. Jacobson, 172F.3d 144,157(2dCir. 1999) {en banc) (distinguishing between private settlement 16 The Court o f A ppeals’ agreem ent w ith the Special M aster’s and D istrict C ourt’s interpretation o f the Consent Decree rested solidly on the m ost basic canon o f construing contracts: the specific language o f the writing. (Pet. 14a-15a.) Indeed, the Special M aster explicitly referred to and relied upon principles o f contract interpretation applied by the California courts in reaching his conclusions about the m eaning o f the Decree and the obligations it p laced upon Petitioners. See discussion supra pp.7 & n.6, 9-11; see also Pet. 138a (citing Golden West Baseball Co. v. City o f Anaheim, 25 Cal. App. 4th 11 (1994)). The “issue” fram ed by Petitioners simply is not in this case. M oreover, the approach taken by the Special M aster and the courts below is fully consistent w ith the rulings in Armour and ITT Continental Baking. This Court em phasized in Armour that “the scope o f a consent decree m ust be discerned w ithin its four com ers, and not by reference to what m ight satisfy the purposes o f one o f the parties to it,” 402 U.S. at 682, and in ITT Continental Baking th a t “the instrum ent m ust be construed as it is written, and not as it m ight have been written had [one o f the parties] established his factual claims and legal theories in litigation,” 410 U.S. at 236 [language in brackets added], quoting Armour.13 agreements and consent decrees: “A plaintiff willing to settle constitutional claims by way of a consent decree seeks the assurance that, if the defendant fails to fulfill its agreed obligations, those obligations will be enforceable through the court’s exercise o f its contempt power. . . . The parties may of course enter into an agreement that is not conditioned upon such approval [by the court], but that would be a different agreement from an accord envisioning a consent decree”). 13The various decisions o f federal courts of appeals with which Petitioners suggest the ruling below is in conflict (Pet. at 16) 17 Finally, the “construction” o f the Decree that Petitioners urge, m easuring com pliance with the load factor targets by calculating M TA system -wide “averages over 20-minute peak periods” (Pet. at 3) could not represent the contem poraneous “in tent” o f the parties w hen the Consent Decree was negotiated (see id. at 5 n.3) because it w as suggested by Petitioners to the Special M aster as a standard to be “newly proclaim ed” by the M aster in preference to the standard “existing in the Consent D ecree,” see supra pp. 6-7 (quoting Petitioners’ letter b rie f to the Special M aster, infra Opp. App. at 54a). For all o f these reasons, the first “Question Presented” by Petitioners does not arise on the record o f this case, and there is no basis for issuing the W rit. W ere the Court to grant review on this issue, it w ould inevitably find it necessary to dism iss the W rit as im providently granted. do not hold otherwise. E.g., E.E.O.C. v. New York Times Co., 196 F.3d 72, 78 (2d Cir. 1999) (“Although courts have equitable powers to enforce consent decrees, such power exists only to ensure compliance with the decrees’ terms. . . . the statistical goals in the instant case are specifically set out in the decree. By focusing on those goals, we are, therefore, enforcing the express agreement of the parties.); Harris v. City o f Philadelphia, 137 F.3d 209, 212 (3d Cir. 1998) (“We discern the scope of a consent decree by examining the language within its four comers. . . . A court should not later modify the decree by interposing terms not agreed to by the parties or not included in the language of the decree.); Musso v. University of Minnesota, 105 F.3d 409,411 (8* Cir. 1997) (applying Armour to reject argument that “special mechanism for dealing with sex discrimination claims” created by consent decree was available, by virtue o f “relation back” theory applied by courts in discrimination cases, to alleged victim of retaliatory act that took place after “the bargained-for-date [stated in the decree] on which that mechanism lapsed”). 18 II The Second Question Presented By Petitioners Is Dependent Upon Assumptions That Are Contrary To Factual Findings Concurred In By Two Courts Below And Is Therefore Inappropriate For Review By This Court Petitioners’ heated rhetoric about the low er courts’ alleged disregard o f the principles o f federalism in this case has no roots in the proceedings or decisions below. First o f all, the Special M aster and the reviewing courts gave appropriate deference to M TA ’s governm ental status and financial panel situation. Second, the concern o f the dissenting judge on the panel — that the Special M aster’s decisions inflexibly ignored the possibility that M TA m ight encounter delays in obtaining the necessary funding for bus purchases, or even funding denials because his rulings did not allow the tim e needed for various grant applications and approvals — overlooks the Special M aster’s explicit clarification o f his directives, w hen requested by M TA, so as to provide that delays in obtaining new equipm ent that were beyond M T A ’s control “w ould not be considered a violation o f the rem edial plan” that he ordered into effect (Pet. 135a n.13). Petitioners assert that the decisions below im properly “intrude into the discretionary authority com m itted to state agencies” by “ordering the M TA to buy hundreds o f buses” (a) “that the Decree did not require” and (b) “that the M TA had insufficient funding to buy and to operate while sim ultaneously m eeting its statutory obligations to users o f its transportation systems other than bus riders” (Pet. at i). To the extent that the first proposition is intended to incorporate M TA ’s contention that there was no failure on its part to m eet the load factor target in the Decree, properly construed (see Pet. at 13), it 19 merges w ith the first Q uestion Presented and has been dealt w ith above. Petitioners’ rem aining point about what the Decree required appears to be that the courts below should have deferred to M T A ’s own calculations o f how many additional buses w ould be necessary to assure compliance w ith the Consent Decree as construed by the Special M aster. (See Pet. at 6 (“The M TA produced substantial evidence . . . that it would m eet the next [load factor reduction] target by im plem enting its L[oad]F[actor]R[em ediation]P[lan]”).) However, the fundamental design flaws o f M T A ’s plan made a substantial m easure o f deference inappropriate, as even the dissenting judge below recognized: [U]nlike M TA, federal courts are not in the business o f running and funding local transportation systems. . . . For this reason, a substantial measure o f deference to the local agency generally is appropriate. . . . Unfortunately, in the instant dispute, M TA put forw ard a rem edial plan that was based on data covering only 20 o f the 79 bus lines at issue. Because o f M TA ’s failure to prepare a plan that addressed all o f its LFT violations, the special master and district court could not fully defer to M TA ’s proposed plan. (Pet. 23a, 35a.)14 The Special M aster performed his own detailed analysis o f the data submitted by the parties (see id. at 76a-121a, 160a-169a) and, in the words o f the m ajority 14The Special Master found that Respondents’ remedial plan “provide[d] a more comprehensive picture from which to determine line-by-line causes of load factor violations and serve[d] as a basis for tailoring appropriate remedies to the problem of overcrowding” because it was based on load factor violation “data for all 77 [bus] lines” “during the entire period from November 1997 through September 1998” (Pet. 76a, 77a). 20 opinion, “attem pted to steer a m iddle course betw een the com peting rem edial plans” (Pet. 9a) in determ ining how m any additional buses were necessary to com ply with the D ecree.15 Except for directing reconsideration o f some portions o f the Special M aster’s rem edial orders, the D istrict Court affirm ed the M aster’s factual findings on th is subject (id. at 47a) and they w ere not disturbed by the C ourt o f Appeals. The second o f Petitioners’ po in ts, that the rulings below were im properly intrusive because they failed to recognize M T A ’s lim ited funding and its need to m eet its other statutory obligations, is equally lacking in m erit. Petitioners requested reconsideration and m odification o f the Special M aster’s rem edial o rder on the basis o f the same contentions. The Special M aster concluded that M T A ’s protestations were unsupported and excessive: [T]he M TA does not dem onstrate specifically how the M arch 6 O rder would com pel the M TA to violate any statutory obligations. In the M T A ’s M ay 4 ,1 9 9 8 draft Restructuring Plan, the M T A identifies the many funding sources for which bus capital and/or operating costs are eligible, [citation om itted.] For m any o f these bus-eligible funding categories, no funds at all have been allocated to buses. See generally D eclaration o f Thom as A. Rubin . . . (noting that the M TA has not applied for, allocated or obtained m axim um bus 15Although Petitioners argue that “The Decree never required the MTA to buy a bus whenever a target was missed” (Pet. at 4) and that “Nothing in the Decree required the MTA to buy buses if targets were missed; targets could also be met by vehicles other than buses, such as vans or taxis” (Pet. at 5), MTA’s own remedial plan “concluded that 160 additional buses would be required to ensure compliance with the Decree” (Pet. 72a). 21 funding under various federal, state and local funding sources including Sections 5307, 5309 and Proposition C Funds). Thus, the fact that the M TA apparently has not applied for, allocated or received these bus-eligible funds som ew hat undercuts the M TA ’s argum ent that it will be forced to tap already-com m itted funds, and therefore violate its other statutory obligations, to com ply w ith the Decree, [footnote omitted.] M oreover, . . . the M TA does not specifically show how its long-range budget, w ith careful and ad vance p lann ing , canno t accom m odate the expenditures required to com ply w ith the M arch 6 D ecision as m odified by this Order. On the contrary, the N ovem ber 11, 1998 Regional Transportation A lternatives Analysis (“R T A A ”) concluded that as a result o f suspended rail projects and expanded funding sources, the M TA is expected to have approxim ately $1.4 b illion in funds available between FY99 and FY04. W hile there are, o f course, other important projects that call for the use o f these funds, the fact rem ains that, on this record, the M TA has not shown w hy som e o f these funds could not be used to fund or to secure the funding o f the expansion buses required by the Rem edial Plan [footnote om itted.]16 16As the Special Master observed, Focusing on its other obligations . . . does not relieve the MTA from its obligation under the Decree to make bus operations its first priority: “consistent with other statutory responsibilities and obligations, MTA’s first priority for the use of bus- eligible funds realized in excess o f funds already budgeted [in October, 1996] for other purposes 22 (Pet. 147a-149a.) These findings were not disturbed by the D istrict Court, and the Court o f Appeals specifically held not only that they were subject to the “clearly erroneous” standard o f review , but also that “M TA has not pointed to any evidence suggesting that the Special M aster’s factual finding that M TA had not exhausted all sources o f funding was clearly erroneous” (Pet. 16a-17a). Thus, the factual foundations o f both prongs o f the “federalism ” argum ents advanced by Petitioners are conclusively underm ined by the explicit findings o f the Special M aster and both reviewing courts below. U nder these circum stances, this Court “cannot undertake to review concurrent findings o f fact by two courts below in the absence o f a very obvious and exceptional showing o f error,” Graver Tank&Mfg. Co. v. Linde Air Products Co., 336 U.S. 271 ,275 (1949), quoted in Exxon Co., U.S.A. v. Sofec, Inc., 517 U.S. 830, 841 (1996), a showing not m ade by Petitioners here. shall be to improve bus service for the transit- dependent by implementing MTA’s obligations pursuant to this Consent Decree.” Consent Decree § I.F. [footnote omitted.] As a practical and contractual matter, the allocation of sufficient resources to halt the deterioration of bus service to the MTA’s most frequent daily customers - the transit-dependent of Los Angeles - should take precedence over the funding o f new transit alternatives, even those designed to attract new transit patrons. This is what the Consent Decree requires. (Pet. 148a [emphasis in original] [bracketed language added].) The Master expressly ruled: “I do find that the MTA has not allocated, through reprogramming or otherwise, sufficient funds to procure and operate an adequate number of expansion buses to remedy the load factor violations attributable to insufficient capacity” (Pet. 126an.2). Compare Consent Decree § II.A.4. (Pet. 177a). 23 Nevertheless, Petitioners argue that the Special M aster ’ s Order required M TA to seek state and federal funding to buy buses w ithout “m eeting the statutory conditions precedent with which it had to com ply” and “imperiled the M TA ’s existing and future funding” (Pet. at 8-9 [footnote omitted]); see also id. at 10 (referring to “M TA ’s impending loss o f State and federal funding caused by the district court’s mandatory injunction”).) Judge Hall, dissenting below, also expressed concern that the “district court and special m aster neither gave M TA enough time to secure these [precedent funding] approvals nor m ade the rem edy contingent upon obtaining them ” (id. at 25a, 37a). W hatever force these considerations m ight otherwise have is vitiated by the following facts: First, in response to M TA’s request for reconsideration and m odification o f the M arch 6 Order, the Special M aster explicitly indicated that his Order w as not intended to supersede compliance w ith statutory or program m atic requirem ents o f funding programs, even i f that caused delay in placing buses into service: The Special M aster recognizes that severe tim e constraints face the MTA. W hile the M TA has in place a sound program that will address the “m issing bus” cause o f the load factor violations, it has not m oved expeditiously to remedy, through fleet expansion, the “insufficient capacity” violations. In trying to catch up at this late stage, the M TA undoubtedly will need to satisfy various legal prerequisites and m ay confront unanticipated obstacles. These problems will have to be addressed i f and when they present them selves. In the meantime, progress should be detailed in the quarterly reports. Again, perfection is not required and the M TA is not being asked to perform the impossible. I f the M TA has a sufficient and court-approved rem edial plan 24 in place, and can establish that it is taking every reasonable step in its pow er to execute faithfully this plan, then, for exam ple, the late arrival o f additional new buses for reasons beyond the M T A ’ s control would not be considered a violation o f the remedial plan, To date, however, the M TA appears to resist any requirem ent o f additional new expansion buses as part o f a rem edial p lan that it has not, in its sole discretion, devised. (Pet. 135a [footnote placed in tex t to avoid confusion] [emphasis added].) Second, as M TA inform ed the C ourt o f A ppeals in its reply brief, it prom ptly com plied w ith the D istrict C ourt’s ruling (while seeking a stay o f its O rder) by purchasing 297 additional buses: In response to the district court’s Septem ber 23, 1999 order, the M TA Board o f D irectors voted on Septem ber 29, 1999, to procure 297 new buses and directed the M TA sta ff to com m ence the procurem ent process im m ediately-----Those buses represent the full am ount o f new buses that the M TA was directed to purchase by Mr. B liss’s m em oranda, as m odified by the d istrict court’s Septem ber 23, 1999 order. (Appellant Los A ngeles County M etropolitan T ransportation A uthority’s Reply B rief at 12, Labor/Community Strategy Center v. Los Angeles County Metropolitan Transportation Authority, 263 F.3d 1041 (9th Cir. 2001) (No. 99-56581) (Pet. la-30a).) A lthough the N inth Circuit granted a stay pending appeal, this bus purchase order was not w ithdraw n. Yet none o f the dire consequences w hich Petitioners continue to predict has occurred: M TA has not lost state or federal funding, nor been sanctioned for failing to com ply w ith applicable procedures for seeking handing. Petitioners have not returned 25 to the District Court to seek re lief from any practical problem s flowing from their com pliance w ith its Order. In short, Petitioners’ actual experience in com plying with the orders below dem onstrates that the problem s they conjure up are imaginary, not real. They certainly do no t warrant this C ourt’s review. CONCLUSION Because the Special M aster and the lower courts interpreted the Consent Decree in th is case pursuant to California law and canons o f contract construction, the first Question Presented by Petitioners does not arise on this record and therefore provides no ground upon which the judgm ent below should be reviewed. The second Question Presented by Petitioners is equally inappropriate for review by this Court, because it assum es facts contrary to the findings o f the Special M aster that were accepted as not clearly erroneous by bo th courts below. For the foregoing reasons, Respondents respectfully submit that the W rit should be denied. 26 Respectfully submitted, Elaine R. Jones Director-Counsel Theodore M. Shaw Norman J. Chachkin NAACP Legal Defense & Educational Fund Inc., 99 Hudson Street, 16th floor New York, NY 10013 (212) 965-2200 *E. Richard Larson Erica J. Teasley NAACP Legal Defense & Educational Fund, Inc. 1055 Wilshire Boulevard, Suite 1480 Los Angeles, CA 90017 (213)975-0211 Constance L. Rice English, Munger & Rice 1545 Wilshire Boulevard, Suite 800 Los Angeles, CA 90017 (213)989-1300 * Counsel o f Record Attorneys for Respondents A P P E N D I X la June 29, 1998 Procedural Order o f the Special Master UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PROCEEDING BEFORE SPECIAL MASTER DONALD T. BLISS LA BOR/COM M UN ITY ) STRATEGY CENTER, ) et al., ) ) Plaintiffs, ) ) vs. ) ) LOS ANGELES CO U N TY ) M ETROPOLITAN TR A N S- ) PORTATION A U TH O RITY ) and JULIAN BU RK E, ) ) Defendants. ) ____________________________ ) PROCEDURAL ORDER On June 24, 1998, a pre-hearing status conference on the issue o f load factor com pliance was held in Los Angeles betw een the Special M aster and counsel for the parties. A fter hearing the argum ents m ade at the conference, and after reviewing the jo in t prelim inary report subm itted by the parties, I have decided to im plem ent the following procedures in an attempt to streamline the process in this consolidated Sta[g]e I and Stage 11 proceeding. Case No. CV 94-5936 TJH (M Cx) IN RE LOAD FACTOR COMPLIANCE 2a June 29, 1998 Procedural Order o f the Special Master First, the parties shall submit sim ultaneous briefing on th e following foundation legal issue: Under the decree, what is the concrete standard by which the Special M aster is to m easure compliance with the target load factor requirem ents? In briefing this question, it is suggested that the parties cover th e following four sub-issues: (1) Should compliance with the load factor requirem ent be m easured on a system-wide basis, on a line-by-line basis, or by some other criteria? (2) In determ ining whether load factor com pliance has been reached, does the decree require that the data to be m easured include data on by-passed passengers? (3) U nder the decree, what is the proper m ethod o f computing the "20 minute weekday peak period" specified under § II.A.2? (4) Does the decree perm it taking any m itigating factors into account in determining whether M TA is in compliance with the load factor targets? Does the decree perm it the load factor targets to be exceeded under any circumstances? If so, how should m itigating factors or target exceedence be defined and quantified for the purpose o f determining compliance with the decree? T he parties are also invited to brief other legal issues relevant to the foundation legal issue set forth above, including the issue o f the " 102 additional buses" requirem ent to the extent relevant. Specific issues relating to the status o f the Pilot Project will not 3a June 29, 1998 Procedural Order o f the Special Master be addressed in this proceeding. Opening briefs shall be faxed to the Special M aster and to opposing parties no later than July 8. 1998. Optional reply briefs shall be faxed no later than July 9. There will be no extensions. Second, once a decision is reached by the Special M aster (scheduled for July 15) the Joint W orking Group shall m eet to determine whether or not the M TA, under the appropriate standard, has achieved compliance under the decree. This determination by the JW G shall be m ade no later than 5:00 p.m . EDT (2:00 PDT) July 21. 1998. I f the JW G cannot reach agreement on this issue, the question o f com pliance shall be referred back to the Special M aster. I f the JW G finds that the M TA is in compliance w ith Section II.A o f the decree, this proceeding will be terminated. If the JW G finds that the M TA has not achieved compliance under the decree, it shall continue to m eet to make recom mendations as to the precise degree o f noncompliance and the specific rem edies required to achieve compliance. The JW G shall report its specific determ inations and recommendations on these issues directly to the Special M aster on or before a date to be established by the Special M aster after further consultation with the JW G. A fter the JW G submits its final report on remedies, counsel to the parties will be provided an opportunity to submit a brief to the Special M aster discussing the report o f the JW G. The Special M aster will review the report o f the JW G and the briefs subm itted by counsel in deciding whether to approve the report and specific recommendations o f the JWG. Third, a conference call to discuss the findings o f the JW G shall be scheduled for 8:00 p.m. EDT (5:00 p.m. PDT) on July 21. 1998. The Co-Chair o f the JW G or their representatives shall be available for this conference call. The 4a June 29, 1998 Procedural Order o f the Special Master purpose o f this conference call will be to receive a report on the findings o f the JW G concerning com pliance or noncom p liance w ith the load factor requirem ents. I f the JW G reaches im passe and cannot agree on a finding, the parties w ill discuss fo llow up requirem ents in accordance w ith the following schedule. Fourth, i f the JW G reaches im passe on the issue o f com pliance with the decree, the parties shall have an opportunity to conduct discovery on the question o f com pliance as well as the rem edies to be fashioned in the case o f non- compliance. Discovery shall com m ence on July 24. 1998 and shall close on August 11. 1998. Fifth, the parties shall fully b rie f the issues raised in th is consolidated Stage I and Stage II proceeding after the close o f the discovery period. The plaintiffs' opening b rie f shall be faxed no later than August 18. 1998. The defendants' opposition b rie f shall be faxed on Septem ber 1. 1998; the plaintiffs' optional reply shall be faxed on Septem ber 4. 1998. Sixth, i f on July 21 the JW G is granted additional tim e to m eet and consider the degree o f noncom pliance and the specific rem edies required, and thereafter reaches an im passe on these issues, the Special M aster will establish a new schedule for discovery and briefing o f these issues. /s/ D onald T. BlissDated: 6/29/98 D onald T. Bliss SPECIAL M A STER 5a June 29, 1998 Procedural Order o f the Special Master PROOF OF SERVICE The foregoing docum ent described as PR O CED U RA L ORDER, IN R E LOAD FA C TO R COM PLIANCE has been served on June 29, 1998, v ia the United States Postal Service by first-class, pre-paid m ail in sealed envelopes to the following parties: DEW ITT W. CLINTON DAVID B. KELSEY JOYCE L. CHANG OFFICE OF THE GENERAL COUNSEL 1 Gateway P laza 24th Floor Los Angeles, CA 90012 CONSTANCE L. RICE E. RICHARD LA RSO N NAACP LEG AL D E FENSE AND ED U CA TIONAL FU ND , INC. 315 W est N inth Street, Ste. 208 Los Angeles, CA 90015 M ARK D. RO SEN BA U M ACLU FO UN DATIO N OF SOUTHERN CALI FORNIA 1616 Beverly Boulevard Los Angeles, CA 90026 KENNETH KLEIN GABRIELA M EJIA RIORDAN & M cKINZIE, P.C. 300 South G rand A venue 29th Floor Los Angeles, CA 90071- 3155 ELAINE R. JONES TH EODORE M. SHAW NAACP LEG AL DE FENSE A N D ED U CA TIONAL FUND, INC. 99 Hudson Street, 16th Floor N ew York, N Y 10013 PAUL L. HO FFM A N GARY L. BO STW ICK 100 W ilshire Boulevard Suite 1000 Santa M onica, CA 90401 6 a June 29, 1998 Procedural Order o f the Special Master Copies o f the foregoing have been provided by facsim ile to M r. Kenneth K lein/M r. David Kelsey/Gabriela M ejia and Ms. Constance Rice/M r. Richard Larson. /s/ D onald T. B liss________ Special M aster 7a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards fo r Compliance UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA PROCEEDING BEFORE SPECIAL MASTER DONALD T. BLISS LA BOR/COM M UN ITY ) STRATEGY CENTER, ) et a l , ) ) Plaintiffs, ) ) vs. ) ) LOS ANGELES CO UN TY ) M ETROPO LITAN TRANS- ) PORTA TIO N AU THORITY ) and JULIAN BU RK E, ) ) Defendants. ) - _____________________________________________________________) MEMORANDUM DECISION AND ORDER On June 24, 1998, the parties agreed to brief sim ultaneously the foundational legal issue o f the appropriate standard by w hich the Special M aster is to m easure and determine com pliance w ith the target load factor requirem ents set forth in Section II.A .l. o f the Consent Decree. (See Procedural Order, dated June 29, 1998.) Having review ed the plaintiffs’and defendants’briefs, in conjunction w ith the record Case No. CV 94-5936 TJH (M Cx) IN RE LOAD FACTOR COMPLIANCE ORDER RE STANDARDS FOR COMPLIANCE 8a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance in this proceeding, I make the follow ing legal and factual findings: I. SUMMARY OF FINDINGS A. Section II. A. 1. o f the Consent Decree requires M TA to m eet the December 31, 1997 load factor reduction target for all nonexem pt bus routes, m easured on a line-by-line basis. B. For the purpose o f determ ining com pliance w ith the Consent Decree, the Joint W orking Group (JW G) should utilize the fixed 20-minute periods established by M T A procedures. C. The Consent Decree does not require M T A to incorporate by-passed passenger data into its com pliance calculations. D. Section II.B. o f the C onsent Decree envisions that M TA eventually will procure 102 buses in addition to the buses purchased for replacement purposes. These findings are explained in m ore detail in the following section. II. II. LEGAL ANALYSIS A. The Consent Decree Requires Compliance For All Nonexempt Bus Routes, Measured On A Line-By-Line Basis. The operative provision o f the Consent D ecree w hich governs the standard for compliance states, in relevant part: 9a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards fo r Compliance “M TA shall establish as a five-year goal to be reached by the end o f the fifth com plete fiscal year following the approval o f this Consent Decree, the reduction o f the m axim um load factor ceiling for all bus routes from 1.45 to 1.2 in the following increments (“target load factors”): “D ecem ber 31, 1997, 1.35 . . . . ” (Section II.A -1. (em phasis added).) This term inology -- requiring reduction o f load factor ceilings for “all bus routes” — is consistently used throughout Section II o f the C onsent Decree. For example, Section II.A.4. states: “If M TA fails to m eet the target load factors for all bus lines by the dates specified in paragraph 1 above . . . M TA shall m eet the target as soon as possible . . . . ” (em phasis added). This fram ework is further supported by the language and purpose o f Section H.A.2., which defines “Peak load factor” as the total num ber o f passengers divided by the total num ber o f seats “during any 20 minute weekday peak period in the peak direction o f travel on each bus line.” (em phasis added). Since the measure — “peak load factor” — is defined by reference to “each” individual bus line, and since Section II. A .2 requires compliance for “all bus routes,” the ordinary m eaning o f these terms, taken together, requires com pliance for each and every bus line. There is no language in the Consent D ecree which provides for the possibility o f averaging across m ultiple lines. 10a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance Section II.A .3. provides two specific ways o f exempting specific bus lines from the load factor reduction requirem ents. First, i f ridership increases by more than 15 percent on any bus line, M TA m ay d e fe r 'th e target on that line for one year. Second, the Consent Decree provides that “the JW G [Joint W orking Group] w ill designate a list o f bus lines w hich m ay be exem pted from the load factor reduction requirem ent, such as lines w ith low frequency service.” Apparently, M TA has not invoked the first exception, and the JW G has not specifically designated a list o f bus lines to be exem pted.1 Reading these sections together, I have concluded that M TA is obligated by Section II.A .l. o f the Consent Decree to m eet the D ecem ber 31, 1997 target load factor o f 1.35 on all nonexem pt bus routes, m easured on a line-by-line basis. In the absence o f ambiguity, a court w ill interpret a contract or statute according to the clear, explicit m eaning o f the words used. See e.g., Avemco Ins. Co. v. Davenport, 140 F .3d 839, 842 (9 thC ir. 1998);Perrin v. UnitedStates, 444U .S . 37, 42 (1979). The preceding provisions allow for only one com m on m eaning: com pliance w ith the load factor ceiling is * ’A lthough the JW G has not specifically listed exempt lines, it was noted at the status conference on June 24, 1998 that there are a num ber o f lines for w hich sufficient and timely m onitoring data he,, po in t checks) had not been obtained in order to concentrate m onitoring resources on the 77 m ost traveled lines. This approach, which w as discussed by counsel to both parties and the Special M aster at a previous informal conference, essentially m eans that the data are available for m easuring com pliance on approxim ately 77 lines. 11a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance required for all bus routes except those exempted under the provisions o f II.A.3. The M T A suggests that the standard for compliance should be a m easurem ent o f M TA 's overall compliance rate, per time period, against the industry-wide percentage o f service interruptions. In effect, M TA argues for a percentage "cushion" equal to the industry-w ide rate o f interruptions for each tim e period. W hile M TA presents a thoughtful and analytical case for the com plexities and difficulties o f achieving the target load factors, which apparently were not fully understood by M TA at the time it entered into the Consent Decree, there are several problems w ith the approach it now suggests. First, there is no support for this standard in the language o f the Consent Decree itself, which clearly refers to“all bus routes” and “all bus lines” and measures perform ance on “each bus line.” Second, M T A ’s proposal assum es that a service interruption on a particular line will autom atically cause the load factor to be exceeded for that line. A lthough it m ay be that an exceedence o f the ceiling is m ore likely under such circumstances, as an empirical m atter M TA has not -- and probably cannot - establish that every service interruption leads inevitably to exceeding the target. Finally, even i f these factors were co-extensive, the Consent Decree does not excuse a failure to m eet the load factor ceiling merely because o f service interruptions. Equipm ent malfunctions, traffic, weather and other variables are contingencies w hich were known at the tim e o f the execution 12a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance o f the C onsent Decree and therefore m ust be taken into consideration in planning for com pliance with the load factor ceilings.2 M TA does not dispute “that the target load factor requirem ents are applicable to all o f its bus routes.” (M TA Reply at 1.) However, M TA does dispute “the contention that i f the load factor target o f 1.35 is not achieved in any single 20- m inute tim e period, then the M TA is in breach o f the C onsent Decree.” (Id.) M TA contends that while the C onsent D ecree describes how to compute the peak load factor, it does not explicitly state that failure to obtain the 1.35 load factor ceiling in any 20-m inute period constitutes a breach. Consequently, M TA contends that the Special M aster has some discretion to determ ine w hat is reasonable compliance, in order to avoid a harsh and unreasonable result. W hile M TA ’s contentions and concerns are not w ithout merit, it should be noted that the Consent Decree does build-in some flexibility for M TA in meeting the load factor targets: • The 20 minute period (for peak periods) and one-hour period (for nonpeak periods) is an average o f all buses travelling on a bus route 2M TA cannot be heard to argue that to com ply w ith these requirem ents it will have to achieve a load factor well below the 1.35 initial target. W hile this m ay be the case for some bus lines, the load factor targets are ceilings and M T A is required to take all feasible steps to ensure that they are not exceeded. In any event, since the M TA is required to m eet even stricter targets in the future, such steps will be necessary to m eet these later requirements. 13a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance during the specified tim e period. Thus, individual buses m ay exceed the load factor w ithout exceeding the target i f the average o f all buses on that particular route in the period meets the target. • M TA may defer the target for a year for any line on w hich the ridership increases by m ore than 15 percent. • The JW G is directed to designate a list o f exempted buses. • The Consent Decree expressly reserves to M T A “the discretion in determ ining how the targets will be m et.” (Section II.A.3.) In addition, plaintiffs acknowledge that there are circumstances where M TA would be excused from com pliance with the performance standard in Section II.A. 1. and that enforcement action would not be appropriate for de minimis noncompliance. (See Plaintiffs’ Opening B rief at 15, n. 11.) I agree that the language o f the Consent Decree affords the Special M aster some discretion in fashioning a rem edy where the failure to m eet the target load factor is de minimis. This is consistent w ith the w ell-established principle that courts have discretion to deny a rem edy where the noncom pliance is de minimis. See Withrow v. Concannon, 942 F.2d 1385, 1388 (9th Cir. 1991)(district courts have discretion to deny injunctive relief where noncompliance is de minimis); see also Thomas v. Peterson, 753 F.2d 754 (9th Cir. 1985). Accordingly, the JW G is directed to develop and apply an appropriate de minimis standard which should reflect the understanding that certain bus 14a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards fo r Compliance lines, w hich m ay not exhibit consistent ind icia o f overcrowding, m ay nevertheless fail to m eet the load factor target on a few, isolated occasions. A de minimis standard is intended to obviate an im m ediate rem edial plan for specific bus lines where the periods in which the load factors are exceeded are infrequent, likely attributable to unique and nonrecurring circum stances or events, and not reflective o f a continuing condition o f overcrow ding. Bus lines w hich m eet these de minimis criteria, w hile technically falling short o f the target load factor, will no t require imm ediate rem edial or enforcement action.3 If the JW G cannot agree on a de minimis standard, then each Co-Chair o f the JW G shall recom m end an appropriate de minimis standard and shall submit separately a list o f bus lines that qualify for de minimis treatment. In sum, a determ ination as to w hether M TA is in com pliance w ith the target load factor requirem ent o f Section II. A. 1. o f the C onsent D ecree should be m ade on a line-by-line basis. W here there is sufficient and tim ely m onitoring data w hich show that the target has been exceeded on a specific line, other than on an exem pt line, then the M TA is not in com pliance w ith respect to that line. I f M TA fails to m eet the 1.35 load factor requirem ent on specific lines, then (except for de minimis noncom pliance) a rem edy m ust be fashioned that 3 Bus lines w hich meet these criteria shall be placed on a “w atch list” and m onitored closely thereafter. I f they exceed the target load factors in excess o f the de minimis standard they will be designated for rem edial action. 15a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance w ould enable M TA to achieve and m aintain compliance with respect to that line and to m eet future targets. In its briefs and accom panying Declarations, M TA has raised a num ber o f im portan t concerns and issues. M TA has shown the difficulty o f m eeting the load factor targets during peak periods where there are service disruptions. M TA has further described the specific problem s that have occurred with the fleet o f 200 ethanol and 500 CNG buses and the steps that are being taken to rem edy these problem s and add m ore reliable capacity to the fleet. F inally, M TA has indicated that significant progress has been m ade in achieving the load factor targets during the first two quarters o f this year. If, after applying the standards set forth in this Order, it is determ ined that M TA has not met the December 31, 1997 load factor targets and has not subsequently com e into com pliance w ith the targets w ith respect to specific bus routes, then the analysis and concerns set forth by M TA will be given careful and thorough consideration in designing a rem edy that is practical, feasible, and reasonable. B. The Load Factor Shall Be Calculated Using The 20-minute Fixed Peak Periods Already Utilized By The MTA. The parties dispute w hether the 20-minute peak period should be calculated using a “ sliding w indow ” approach or the fixed 20-m inute periods u tilized by the M TA. Section II.A.2. provides that “M TA shall conduct ride checks to determ ine load factors using current M T A procedures and schedules.” During an informal conference with the Special M aster, it was decided to apply m ost o f the lim ited resources available to the collection o f point check data. (See P laintiffs’ Opening B rief at 16a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance 3, n.2.) M TA states -- and the plaintiffs apparently do not dispute — that its “procedures and schedules in existence at the tim e o f the negotiation o f the Consent Decree [,] and for at least ten years prior to the Consent Decree[,] used fixed 20-m inute intervals.” (M TA Opening B rief at 11 (citation om itted).) Since M TA was obligated to m eet the target load factors, it was im portant to M TA to know the basis upon w hich the data w ould be collected and used in determining com pliance. On the other hand, it was im portant to plaintiffs that M TA supply the JW G w ith all such data and that the JW G be inform ed o f “any change in data gathering/processing procedures.” (Section II.A.2. (em phasis added).) The use o f the term “any 20 m inute weekday period” does not im plicitly incorporate the concept o f a “sliding” or “rolling” 20-m inute period, but rather refers to the determ ination o f the peak load factor by com puting the highest ratio o f any o f the 20-m inute periods for w hich the data were collected pursuant to the M TA collection procedures at the time. Thus, for the purpose o f determining com pliance with the load factor targets on a line-by-line basis, it is appropriate to refer to the 20-minute periods established by M TA procedures. This does not m ean, however, that com putations based on a sliding 20-minute period would be inadm issible or that such data would not be useful in addressing other issues in this proceeding. C. The Consent Decree Does Not Require The MTA To Include Data On ByPassed Passengers. The parties have raised the question o f w hether or not the M TA is required under the Consent Decree to incorporate 17a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards fo r Compliance data on by-passed passengers in calculating its load factors. The Consent D ecree does not contain any provision which explicitly requires the M T A to incorporate by-passed passenger data into its com pliance calculations. Section II.A.2. provides that “ [t]arget load factors shall not be achieved by-passing passengers at bus stops.” This provision prohib its M TA from intentionally by-passing passengers as a m eans o f achieving compliance w ith the load factor targets. I f plaintiffs m ake a showing, either through data or other extrinsic evidence, that the M TA is engaging in such practices, a t that point the Special M aster will consider what rem edies or sanctions are appropriate. In the absence o f such evidence, how ever, the M TA will not be required to incorporate such data into its compliance calculations. Collecting and using accurate by-pass data is a complex process. A passenger standing at a bus stop may not board a specific bus because he or she is waiting for another bus line that shares the sam e stop or because the passenger prefers to take a less crow ded bus that follows closely behind or because the person is w aiting to greet a disem barking passenger. Given the inherent problem s with by-passed passenger data, it would not be fair to include such data in the compliance calculations except w here there is evidence that operators are intentionally by-passing passengers in order to m eet the load factor targets. D. The MTA Is Required Under The Consent Decree Eventually To Purchase 102 Additional Buses. In the Prelim inary Views o f the Special M aster Based on Inform al Briefing (March 12, 1997), the Special M aster expressed prelim inary views about the requirem ent in Section 18a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance II.B. concerning 102 additional buses. A t that tim e, it was apparent that M TA could not satisfy this requirem ent by procuring 102 additional new buses w ithin the short deadlines provided by the Consent Decree. Thus, the practical solution was to add to overcrowded routes serving the transit-dependent new buses that were already on order as replacem ent buses and to extend for a reasonable period o f tim e the life o f the buses that were scheduled for phase-out. To comply fully w ith the express term s o f Section II.B., however, it was always envisioned that the M TA eventually would procure the additional buses agreed upon in the Consent Decree since both parties recognized that the buses scheduled for replacement were near the end o f their life cycle. N o tim e was set for the procurem ent o f an additional 102 buses that would enable M TA to phase out the buses originally scheduled for replacement while m aintaining the net addition o f 102 buses in the fleet. I f it is determ ined that M TA has not m et the target load factor on certain lines, it would be appropriate to consider whether the time is now ripe for the procurem ent o f the net addition o f 102 new buses, if M TA has not done so already. W HEREFORE, it is hereby Ordered that: 1. A copy o f this M em orandum Decision and Order shall be provided to the Co-Chair o f the Joint W orking Group (“JW G”) who shall convene a m eeting o f the JW G to determine whether M TA has m et the load factor targets set forth in Section II.A .l. o f the Consent Decree. 2. The Co-Chair o f the JW G shall report to the Special M aster on the form attached as Exhibit A hereto on or before 2:00 p.m. PDT on July 21, 1998. 19a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance 3. A conference call is scheduled for 5:00 p.m . PDT on July 21, 1998 to set a schedule for subsequent action based on the report o f the JWG. Is/ D onald T. Bliss Donald T. Bliss SPECIAL M ASTER Dated: 7/15/98 20a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance EXHIBIT A The Joint W orking Group m et o n _________________ , 1998 f ro m __________ t o ______ . The m em bers o f the JW G have review ed the M em orandum D ecision and O rder o f the Special M aster, dated July 15, 1998. B ased on the review and advice o f the JW G, as Co-Chair o f the JW G , we have m ade the following findings, as evidenced by our initials below. ___________ W e have determ ined tha t M TA has m et the load factor reduction target o f 1.35 set forth in Section II.A .l. o f the Consent Decree. ___________ W e have determ ined that M TA has not m et the load factor reduction target o f 1.35 set forth in Section H A . o f the Consent Decree with respect to certain bus lines. ___________ W e cannot agree as to whether M TA has met the load factor reduction target o f 1.35. We therefore have reached impasse. ___________ M TA has not m et the load factor targets on the follow ing nonexem pt bus lines (bus lines which did not m eet the load factor targets but m et the de minimis standard are to be included but may be identified separa te ly ):____________________ 21a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards fo r Compliance In determ ining that the target exceedence for certain bus lines is de minimis for purposes o f rem edy, we have adopted the following de minimis standard: W e did not agree on a de minimis standard. We have attached hereto de minimis standards recom m ended by each o f the Co-Chairs and a list o f bus lines that w ould qualify as de minimis under each respective standard. Co-Chair Co-Chair f o r ________________for DATE/TIM E 22a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards for Compliance PROOF OF SERVICE The foregoing M EM ORANDUM DECISION AND ORDER IN RE: LOAD FACTOR COM PLIANCE/ORDER RE STANDARDS FO R COM PLIANCE has been served on July 15, 1998, via the U nited States Postal Service by first- class, pre-paid mail in sealed envelopes to the following parties: DEW ITT W. CLINTON DAVID B. KELSEY JOYCE L. CHANG OFFICE OF THE GENERAL COUNSEL 1 Gateway Plaza 24th Floor Los Angeles, CA 90012 CONSTANCE L. RICE E. RICHARD LARSON NAACP LEGAL DE FENSE AND ED UCA TIONAL FUND, INC. 315 W est N inth Street, Ste. 208 Los Angeles, CA 90015 M ARK D. ROSENBAUM ACLU FOUNDATION OF SOUTHERN CALI FORNIA 1616 Beverly Boulevard Los Angeles, CA 90026 KENNETH KLEIN GABRIELA M EJIA RIORDAN & M cKINZIE, P.C. 300 South Grand Avenue 29th Floor Los Angeles, CA 90071- 3155 ELAINE R. JONES THEODORE M. SHAW N A ACP LEGAL DE FENSE AND ED U CA TIONAL FUND, INC. 99 Hudson Street, 16th Floor N ew York, NY 10013 PAUL L. HOFFM AN GA RY L. BOSTW ICK 100 W ilshire Boulevard Suite 1000 Santa Monica, CA 90401 23a July 15, 1998 Memorandum Decision and Order o f Special Master Re Standards fo r Compliance Copies o f the foregoing have been provided by facsimile to Mr. Kenneth K lein/Gabriela M ejia, M r. David Kelsey/M s. N ina W ebster, and Ms. Constance Rice/M r. Richard Larson. Is/ Donald T. Bliss Special M aster 24a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order UNITED STATES D ISTR IC T COURT CENTRAL DISTRICT OF CALIFORNIA PROCEEDING BEFORE SPECIAL MASTER DONALD T. BLISS LA BOR/COM M UN ITY ) STRA TEG Y CENTER, ) C ase No. CV 94-5936 et al., ) TJH (M Cx) ) Plaintiffs, ) IN RE LOAD ) FACTOR vs. ) COMPLIANCE ) LOS ANGELES COUNTY ) M ETROPO LITAN TRANS- ) PO RTA TIO N AU THO RITY ) and JULIAN BU RKE, ) ) Defendants. ) ____________________________ ) ORDER RE PLAINTIFFS’ MOTION FOR RECONSIDERATION OF THE SPECIAL MASTER'S JULY 15,1998 ORDER RE COMPLIANCE STANDARDS BACKGROUND U nder Section II. A. 1. o f the C onsent Decree, the M TA was required, by Decem ber 31, 1997, to reduce the m axim um 25a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion fo r Reconsideration o f July 15, 1998 Order load factor ceiling fo r all bus routes to 1.35. Some four months later, on M ay 1, 1998, counsel for plaintiffs' class filed a procedural m otion before the Special M aster seeking to consolidate Stage I and Stage II proceedings and to open a period o f discovery to determine w hether M TA has complied w ith the term s o f the Consent Decree. M TA opposed the m otion, seeking in stead informal consultations in accordance w ith the procedures set forth in the Consent Decree. Because plaintiffs argued tha t informal discussions w ould be unproductive and because o f the need to expedite resolution o f the com pliance issue, the Special M aster granted the m otion to consolidate on M ay 28, 1998 and requested the parties to clarify in writing the outstanding issues to be resolved. A status conference w ith the parties was held on June 24, 1998 for the purpose o f narrow ing the issues and setting an expedited briefing schedule. In their subm issions to the Special M aster and at the June 24 status conference, the parties disputed the legal and factual standard under which M TA's compliance w ith the Decree is to be m easured. It was determined that if this threshold legal issue w as resolved first and the legal standard clarified, the Joint W orking Group (JW G) established by the C onsent Decree w ould be directed to determine whether M TA was in com pliance w ith the D ecem ber 31, 1997 load factor target. Accordingly, on June 29, 1998, the Special M aster issued a Procedural O rder directing the parties to submit, by July 8, 1998, sim ultaneous legal briefs addressing the foundational legal question (and various related sub-issues) concerning the p roper standard by which to m easure com pliance under the Consent Decree. 26a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order The briefings submitted by the parties presented vastly different interpretations o f the com pliance standards under the Decree. The M TA contended that the standard for compliance should be a m easurem ent o f M TA 's overall system-wide com pliance rate, per tim e period, against the industry-wide percentage o f service interruptions. The M TA also argued for a com putation o f the load factor using the fixed, 20-m inute periods that M TA has consistently used in collecting data, and contended that the M TA was not required under the Decree to keep data on by-passed passengers. Conversely, the plaintiffs' class argued that the plain m eaning o f the Decree requires com pliance to be m easured for "all bus routes" using a sliding w indow for "any 20-m inute period." Plaintiffs also argued that the M TA was required to keep data on by-passed passengers to ensure that it was not achieving the targets through these m eans. After receiving the parties' opening and reply briefs, the Special M aster issued a M emorandum Decision and O rder on Ju ly 15,1998 (the "July 15 Order"). The July 15 Order rejected M TA 's "system-wide" averaging approach to compliance and stated that Section II. A. 1. o f the Consent Decree requires M TA to m eet the Decem ber 31 ,1997 load factor reduction target for all nonexem pt bus routes, m easured on a line-by-line basis. The Special M aster also ruled that com pliance is to be m easured using the fixed, 20-m inute periods consistently used by the M T A at the tim e the Consent Decree was negotiated and for at least ten years prior thereto, noting that the sliding 20-minute period could be "useful in addressing other issues in this proceeding." The Special M aster further ruled that the M TA w as prohibited under the Decree from intentionally by-passing 27a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order passengers to achieve compliance, although it was not required to gather these data in its load factor computations. The July 15 Order directed the JW G to convene and, applying this standard, determine whether M TA has m et the load factor reduction target o f 1.3 5 set forth in Section II. A. 1 o f the Consent Decree and, if the target has not been met, to specify the specific bus lines that did not m eet the target. Since a single 20-m inute violation w ould cause a bus line (and M TA) to be in violation o f the Consent Decree, even i f the violation occurred because o f an extraordinary event on an otherwise uncrowded line, the JW G, w hich includes the technical expertise on bus operations as well as compliance m onitoring, was instructed to consider, after listing any noncom pliant lines, what type o f de minimis standard could be applied during the remedy phase o f this proceeding to eliminate the immediate need to rem edy extraordinary situations not reflecting other indicia o f overcrowding. Contrary to the plaintiffs' contention (Pis. Recon. Br., p. 4), however, there was to be no de minimis exception from the finding o f noncompliance. The JW G w as directed to report its findings on compliance in accordance w ith this standard on or before 2:00 p.m. PDT on July 21, 1998. Shortly after the July 15 decision, counsel for the plaintiffs indicated their intention to move for reconsideration o f the July 15, 1998 Order, and requested that the m eeting o f the JW G be postponed until after reconsideration. In a July 24th letter, plaintiffs submitted an agreed-upon briefing schedule. On August 14, 1998, plaintiffs filed their reconsideration brief. Plaintiffs did not dispute the fundam ental ruling in the July 15, 1998 O rder that Section II.A. o f the Consent Decree requires M TA to reduce "the m axim um load 28a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order factor ceiling" to 1.35 on all "bus lines" and that there is no language in the Consent Decree that provides for "averaging across m ultiple lines." However, p lain tiffs contended th a t the July 15, 1998 Order was in error on the grounds that: (1) any m ention o f the possible application o f a de minimis standard is premature; (2) the Consent Decree requires the M TA to utilize a "sliding window" rather than the M T A 's "fixed" 20-m inute periods; (3) the Consent Decree’s "by-pass" provision does not require a finding that the M TA "intentionally" by-passes passengers; (4) the July 15 Order im properly lim ited potential rem edies to a line-by-line approach; and (5) that the stipulated facts require a finding that the M TA has breached the D ecree by failing to procure an additional 102 buses. The p lain tiffs also m oved to strike, as improper extrinsic evidence, M TA 's declarations submitted in support o f its earlier briefs on the compliance issue. In response, the M TA filed its opposition b rie f on August 21, 1998, contending that the Special M aster's Ju ly 15 Order is legally supportable, and that p laintiffs have no t m ade the requisite showing for reconsideration under U.S. Central D istrict Local Rule 7.16. The M TA also m oved to strike the declaration o f Thomas Rubin as extrinsic evidence. O n A ugust 24, plaintiffs filed a reply in support o f their petition for reconsideration. Upon consideration o f the parties' opening briefs and the plaintiffs' reply brief, as well as the evidence in the record, I make the following findings and conclusions o f law, granting in part, and denying in part, p laintiffs' m otion for reconsideration: 29a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion fo r Reconsideration o f July 15, 1998 Order FINDINGS AND CONCLUSIONS 1. W here, as here, a ruling is non-final, a court has discretion to reconsider its prior decision. See Pyramid Lake Paiute Tribe o f Indians v. Hodel, 882 F.2d 364, 369 n.5 (9th Cir. 1989). M oreover, under Section V.B. o f the Consent Decree, the Special M aster m ay establish appropriate procedures. A lthough I am concerned about the additional delay in addressing the issue o f M TA 's com pliance w ith the load factor targets, I have review ed the petition for reconsideration and M TA's response and have decided to m ake certain m odifications and clarifications to m y prior Order, prim arily to sim plify and expedite resolution o f the com pliance phase o f this proceeding and to m ove on, i f necessary, to the rem edy phase. 2. The fundam ental holding o f the July 15 O rder is hereby reaffirmed. Section II.A .l. o f the Consent D ecree requires M TA to m eet the D ecem ber 31, 1997 load factor reduction target for all nonexem pt bus routes, m easured on a line-by-line basis. W here there is sufficient and tim ely m onitoring data which show that the target has been exceeded on a specific line, other than on an exem pt line, then the M TA is not in com pliance w ith respect to that line. Since the Consent Decree requires M TA to m eet the load factor target for all nonexem pt bus lines, the failure to m eet the target on any specific nonexem pt line constitutes noncom pliance w ith a requirem ent o f the Decree. 3. The legal findings in the July 15, 1998 Order were intended to deal solely with the threshold legal standard by which compliance is to be m easured; they did not purport to 30a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion fo r Reconsideration o f July 15, 1998 Order resolve any rem edial issues. The references to the potential application o f a de minimis standard (a power w hich the parties do not d ispute is available to the Court) were intended to initiate discussions by the JW G and to obtain its expert advice for purposes o f possible application to a future rem edial determ ination, i f necessary and appropriate, at a later stage and after full legal briefings and evidentiary findings. Plaintiffs have expressed great concern that the July 15 O rder m ay have anticipated rem edial issues collateral to the question o f com pliance -- issues which the parties have not yet briefed. Since there w ill be ample opportunity to address and b rie f fully this issue, i f necessary, at a subsequent rem edial stage o f this proceeding, I am hereby deleting all references arid directives in the July 15 Order relating to the de minimis standard. 4. Contrary to plaintiffs' contention (see Pis. Recon. Br., pp. 4-6), the July 15 Order did not lim it the type o f re lief that m ay be appropriate i f a finding o f noncom pliance is made. The Consent Decree requires that compliance be m easured on a line-by-line basis, not that any remedy be solely lim ited to a line-specific remedy. The appropriate form s o f rem edy w ill be the subject o f subsequent proceedings, if necessary. 5. Section II.A.2 o f the Consent D ecree is silent on how the "20-m inute peak period" is to be specifically com puted. In the July 15 Order, the Special M aster concluded that the "20-m inute peak period" referenced in the Decree should be calculated using the fixed 20-minute periods utilized by the M TA . This finding was based prim arily upon Section ILA..2., w hich provides that: "MTA shall conduct ride checks to determ ine load factors using current M TA procedures and 31a August 25, 1998 Order o f Special Master Re Plaintiffs ' Motion fo r Reconsideration o f July 15, 1998 Order schedules." Upon further reflection and analysis o f this provision, however, it appears that this provision does not fully resolve the ambiguity in this section. The participial phrase "using current M TA procedures and schedules" gram m atically refers to and m odifies the predicate "shall conduct ride checks"; it does not grammatically m odify the infinitive phrase "to determ ine load factors." This distinction is significant because the task o f actually "conducting" the ride checks (or point checks) — the act o f counting the num ber o f standing passengers at the specific time that a bus reaches a bus stop — does not involve any application o f or reference to a 20-minute period. Thus, this provision relating to the procedures used in gathering the data is not necessarily relevant to the question o f how the raw data are analyzed for purposes o f computing the load factors. The controlling provision to be interpreted sim ply states: ’"Peak load factor' shall m ean (total num ber o f passengers/total number o f seats) which shall be determ ined by computing the highest ratio o f total num ber o f passengers to total num ber o f seats achieved during any 20 minute weekday peak period in the peak direction o f travel on each bus line." Consent Decree, Section II.A.2 (emphasis added). Since there is no definition o f "any 20-minute weekday peak period" in the Decree, I have looked to the sparse case law for precedent that m ay be helpful in resolving this ambiguity. In Young v. Kwock, 474 P.2d 285 (Haw. 1970), plaintiffs elected to rescind a securities sale under Hawaii's Blue Sky Law. One o f the 32a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order defendants attem pted to assert a statutory exem ption for: "Any transaction pursuant to an offer directed by the offeror to not m ore than twenty-five persons . . . during any period o f twelve consecutive months . Id. at 287 (em phasis added). This defendant argued that "any period o f tw elve consecutive m onths" referred to a fiscal year. The H aw aii Supreme Court rejected this argum ent, holding that the language referred w ithout lim itation to "any period" o f tw elve m onths. Id. Thus, the Court implicitly acknowledged the use o f a sliding w indow as the plain and unam biguous interpretation o f the term .1 Ultimately, even if both interpretations o f the term "any 20-m inute period" are regarded as equally plausible, the "sliding window" appears to be m ore consistent w ith the purpose o f the Decree. The Special M aster has repeatedly em phasized that one o f the central purposes o f the Decree is to im prove service and reduce overcrow ding for the transit- dependent o f Los Angeles. See also C onsent Decree, Section 1. The "sliding window" approach differs from the fixed periods m ethod by the significant fact that, under the form er approach, m ore load factors are com puted for each bus route. Since it is likely that a greater sample size w ould increase the accuracy o f the prediction, the "sliding window" m ethod provides a m ore accurate assessm ent o f the overcrowding conditions in the bus 1 This conclusion is consistent w ith the N inth Circuit holding in Reconstruction Finance Corp. v. Chromium Products Corp., 202 F.2d 664 ,666 (9th Cir. 1953) that the term "any restriction" is not confined to a "single kind" o f restriction. 33a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order routes being m easured.2 M oreover, under Cal. Civ. Proc. Code § 1864, "when different constructions o f a provision are otherwise equally proper, that is to be taken which is m ost favorable to the party in whose favor the provision was made." See also Sutherland v. Barclays Am./Mortgage Corp., 53 Cal. App. 4th 299,61 Cal. Rptr. 2d 614 (1997)(where parties' competing interpretations o f stop provision were equally plausible, agreem ent was interpreted in favor o f borrower in whose favor agreem ent was made). Clearly, the persons in whose favor the D ecree was made — the transit-dependent o f Los Angeles — are m ost favored by an interpretation which measures com pliance by a more com prehensive standard o f measurement. Accordingly, the Special M aster grants plaintiffs' m otion on this issue and hereby adopts the 20-m inute "sliding window" approach as the governing interpretation o f "peak load factor" for the purpose o f computing compliance under Section II.A.2 6. The July 15 Order stated that Section II.A.2. "prohibits M TA from intentionally by-passing passengers as a means o f achieving compliance w ith the load factor targets." July 15 Order, p. 11 (emphasis added). Plaintiffs correctly point out that Section II.A.2. o f the Decree makes no reference to the 2 Indeed, one o f the M TA's representatives to the JW G has candidly admitted that "ideally it should be a sliding 20- m inute window." See Reporter's Transcript o f [JWG] Proceedings, M ay 27, 1997, 63:4-5. 34a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order intent o f the M TA in stating that "[tjarget load factors shall not be achieved by by-passing passengers a t bus stops." N onetheless, the Decree does not explicitly require the M TA to keep data on by-passed passengers. I f the plaintiffs w ish to present data showing that passengers are being by passed (whether intentionally or not), and that such data, if included in the com putations, w ould have the effect o f showing noncom pliance w ith the load factor targets for certain bus lines, such data will be considered in subsequent proceedings on noncompliance. However, the possibility that p laintiffs may introduce such evidence in the future w ill no t be cause for delay in the present proceedings.3 7. Extrinsic evidence supporting an interpretation to w hich an agreement is not reasonably susceptible is not admissible. BarrisIndus., Inc. v. Worldvision Enters., Inc., 875 F.2d 1446 (9th Cir. 1989). The declarations o f Dana W oodbury and H arold Hirsch, subm itted by the M TA on July 8, 1998, constitute such inadm issible extrinsic evidence because they support M TA's unreasonable interpretation that the Consent Decree requires com pliance based on an averaging across all bus routes. Contrary to plaintiffs' contentions, I did no t rely on such evidence in providing a threshold legal interpretation of the compliance issue, but suggested that this type o f evidence could be considered in a rem edial phase o f this proceeding. I 3If evidence is subsequently presented on this issue, and if the Special M aster makes findings o f noncom pliance based thereon, any rem edies can be considered at that time. 35a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order am therefore granting plaintiffs' m otion to strike this evidence from the record at this tim e, without prejudice to M TA 's right to introduce this evidence at a subsequent rem edial stage, if necessary. Consequently, the August 14, 1998 D eclaration o f Thom as Rubin is also stricken (subject to the sam e right to re introduce) because such evidence was subm itted by the plaintiffs solely to rebut the extrinsic evidence o f W oodbury and Hirsch. 8. W ithout additional factual inform ation, the Special M aster is not prepared at this tim e to issue a finding o f com pliance or noncom pliance on the issue o f the 102 buses. The Special M aster's M arch 12, 1997 Prelim inary V iew s did not establish any specific deadline for the purchase o f the buses. As stated in the July 15 Order, this issue will be addressed in conjunction with a subsequent rem edial stage, if necessary, or upon the developm ent o f an appropriate factual record. IT IS HEREBY ORDERED THAT: 1. All references and directives in the July 15 O rder relating to the de minimis standard are hereby STRICKEN. The issue will be fully briefed at a subsequent stage o f this proceeding, i f necessary. 2. Plaintiffs' m otion for reconsideration on the issue o f the "sliding window" is hereby GRANTED. The Special M aster hereby adopts the 20-m inute "sliding w indow ” approach as the governing interpretation o f "peak load factor" for the purpose o f determ ining compliance under Section II.A.2. 36a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion fo r Reconsideration o f July 15, 1998 Order 3. Plaintiffs' m otion on the issue o f the by-passed passengers is GRANTED, in part, and DENIED, in part. The M TA is not required to keep data on by-passed passengers. How ever, the plaintiffs can introduce evidence that passengers are being bypassed (and that such data affect load factor com putations) whether such conduct is intentional or not. 4. Plaintiffs' m otion to strike the declarations o f Dana W oodbury and H arold H irsch is hereby GRANTED; M TA's m otion to strike the declaration o f Thom as Rubin is also G RA N TED . Both parties shall have the right to reintroduce such evidence at a subsequent rem edial stage, i f necessary. 5. Plaintiffs' m otion on the issue o f the 102 buses is DENIED. The issue will be considered further at a later date upon the developm ent o f an appropriate factual record. 6. The Joint W orking Group shall m eet as soon as possible to review the load factor m onitoring data and report its findings to the Special M aster as to w hether or not the M TA is in com pliance w ith the 1.35 load factor reduction target set forth in Section II. A. 1. o f the Consent Decree, as interpreted in the Special M aster's Order o f July 15, as m odified by this Order o f A ugust 25, 1998. The JW G shall report its findings to the Special M aster by facsimile on the form attached at Exhibit A on or before Septem ber 4 ,1998 , unless an extension is granted upon specific request to the Special M aster. IT IS SO ORDERED Dated: A ugust 25, 1998 Is/ D onald T. Bliss________ Donald T. Bliss SPECIAL M ASTER 37a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion for Reconsideration o f July 15, 1998 Order EXHIBIT A The Joint W orking Group m et o n _________________ , 1998 f ro m __________ t o ______ . The m em bers o f the JW G have review ed the M em orandum Decision and O rder o f the Special M aster, dated July 15, 1998, and the m odifications to that O rder dated August 25, 1998. Based on the review and advice o f the JW G, as Co-Chair o f the JW G, we have m ade the follow ing findings, as evidenced by our initials below. ___________ W e have determ ined that M TA has m et the load factor reduction target o f 1.35 set forth in Section II.A .l. o f the Consent Decree. ___________ W e have determined that M TA has not m et the load factor reduction target o f 1.35 set forth in Section II.A. o f the Consent Decree w ith respect to certain bus lines. ___________ W e cannot agree as to whether M TA has met the load factor reduction target o f 1.35. We therefore have reached impasse. ___________ M TA has not m et the load factor targets on the following nonexem pt bus lines (bus lines which did not m eet the load factor targets but m et the de minimis standard are to be included but may be identified separately):____________________ 38a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion fo r Reconsideration o f July 15, 1998 Order In determining that the target exceedence for certain bus lines is de minimis for purposes o f remedy, we have adopted the follow ing de minimis standard: W e did not agree on a de minimis standard. W e have attached hereto de minimis standards recom mended by each o f the Co-Chairs and a list o f bus lines that w ould qualify as de minimis under each respective standard. Co-Chair Co-Chair for for DA TE/TIM E 39a August 25, 1998 Order o f Special Master Re Plaintiffs’ Motion for Reconsideration o f July 15, 1998 Order PROOF OF SERVICE The foregoing O RD ER RE PLA IN TIFFS’ M O TIO N FO R RECON SIDERATION OF THE SPECIAL M A S T E R ’S JULY 15, 1998 O RD ER RE COM PLIANCE STA N D A R D S IN RE LOAD FA CTO R COM PLIANCE has been served on August 25 ,1998 , via the U nited States Postal Service by first- class, pre-paid m ail in sealed envelopes to the fo llow ing parties: STEVEN CARNEVALE, ESQ. JOY CE L. CHANG OFFICE OF THE GENERAL COUNSEL 1 Gateway Plaza 24th Floor Los Angeles, CA 90012 E. RICHARD LARSON N A ACP LEGAL D E FENSE AND ED U C A TIONAL FUND, INC. 315 W est Ninth Street, Ste. 208 Los Angeles, CA 90015 M ARK D. ROSENBAUM ACLU FOUNDATION OF SOUTHERN CALI FORNIA 1616 Beverly Boulevard Los Angeles, CA 90026 CO N STA N CE L. R IC E ENGLISH, M U N G E R & RICE 801 South G rand A venue, Ste. 1900 Los Angeles, CA 90017 K ENNETH K LEIN GABRIELA M EJIA RIORDA N & M cK IN ZIE , P.C. 300 South G rand A venue 29th Floor Los Angeles, CA 90071- 3155 ELAINE R. JO N ES TH EO D O RE M. SH A W N A A C P LEG AL D E FENSE A N D E D U C A - 40a August 25, 1998 Order o f Special Master Re Plaintiffs ’ Motion fo r Reconsideration o f July 15, 1998 Order TIO N A L FU N D , INC. 99 H udson Street, 16th F loor N ew York, N Y 10013 PA U L L. H O FFM A N GA RY L. BO STW ICK 100 W ilshire Boulevard Suite 1000 Santa M onica, CA 90401 Copies o f the foregoing have been provided by facsim ile to M r. K enneth Klein/M r. Steven Cam evale, Mr. R ichard Larson and M s. Constance Rice. /s/ D onald T. Bliss Special M aster 41a OFFICE OF TH E LOS ANGELES COUNTY COUNSEL DAVID B. K ELSEY , A ssistant County Counsel JO Y CE L. CH AN G, Senior D eputy County Counsel One Gateway P laza Los Angeles, California 90012-2930 Telephone: (213) 922-2000 RIQRDA N & M cKINZIE, KENNETH KLEIN GABRIELA M EJIA 300 South Grand A venue 29th Floor Los Angeles, California 90071-3109 Telephone: (213) 629-4824 Facsimile: (213) 229-8550 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA STAGE II PRO CEED IN G BEFORE SPECIAL M A STER DONALD T. BLISS, JR July 9, 1998 MTA Brief re Load Factor Compliance Labor/Com m unity Strategy Center, et al., ) ) Plaintiffs, ) ) v. ) ) Los Angeles County M etropolitan ) Transportation Authority, et al, ) ) Defendants. ) ) ) ) Case No. CV 94-5936 TJH (M Cx) In re Load Factor Compliance The MTA’s Brief re Load Factor Compliance Standard 42a July 9, 1998 MTA Brief re Load Factor Compliance T A B LE O F C O N T E N T S I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . [45a] II. TH E STANDARD BY W HICH TO M EASURE COM PLIANCE W ITH THE T A R G E T L O A D F A C T O R IS B Y COM PARING THE MTA'S PERFORM AN CE W ITH AN ESTABLISHED "BENCHM ARK" IN TH E IN D U S T R Y ............................ .. [46a] A. N o Operator Can Replace Lost Service W ithin 20 M inutes .......................... .. [48a] B. Scheduling Additional Service Im poses An Unreasonable Expense A nd Burden On The M T A ..................... ....................... [49a] C. A Peer Benchmark Is The M ost Appropriate And Reasonable Standard To M easure The M TAs Com pliance W ith The Target Load F a c to r ................. [49a] D. The MTA's Past Performance .............. [51a] E. Evaluating the M TA's Perform ance . . [53a] F. The Criteria Adopted by the Special M aster Should N ot be Based on an Analysis o f Individual Bus Lines . . . . [56a] 43a III. THE CU RRENT PLANS TO A D D BUSES AND M AKE CHANGES IN OPERATIONS A N D M A I N T E N A N C E W I L L SIGNIFICANTLY IM PROVE TH E M TA'S OVERALL PERFORM AN CE A N D TA RGET LOAD F A C T O R .................................................... [56a] IV. THE M TA M AY D ETERM INE TH E LOAD FA CTO R W ITHOUT D A TA ON "BY PASSED" PA SSENGERS ................................. [58a] A. The Consent Decree Perm its The M TA To Use Its Ow n Procedures To Determ ine The Load Factor . . . . . . . . [58a] B. T here Is N o A lle g a tio n O r Dem onstration That The M TA Is By- Passing Passengers ................................. [58a] C. There Is N o Proper M ethod To Collect Data On By-Passed Passengers ............ [59a] D. The Com m on Practice In The Industry Does N ot Include A ccum ulating D ata O n B y -P a s s e d P a s s e n g e r s In Determ ining the Load Factor .............. [60a] V. TH E M TA M AY DETERM INE TH E LOAD FA CTO R BY ANALY ZING /CATEG ORIZ ING M ONITORING DA TA INTO FIXED 20 M INUTE IN T E R V A L S ........................................ [60a] July 9, 1998 MTA Brief re Load Factor Compliance 44a A. The Consent Decree Perm its The M TA To U se Its Own Procedures To D eterm ine The Load Factor .............. .... [60a] B. The Com m on Practice In The Industry U ses F ix ed T im e In te rv a ls In D eterm ining the Load Factor, N ot Sliding Intervals ............................... [61a] VI. VI. CO NCLUSIO N .................................................... [62a] July 9, 1998 MTA Brief re Load Factor Compliance 45a I. INTRODUCTION The prim ary task for the Special M aster is to devise a standard by w hich to determine whether the M TA has com plied w ith the target load factor requirements o f the Consent Decree. P laintiffs argue for an "all or nothing" standard that w ould find the M TA in violation o f the C onsent Decree i f it failed to m eet the 1.35 requirement for any bus route during any 20 m inute m onitoring period. As discussed below, that standard would, in effect, force the M TA to achieve a load factor w ell below the required 1.35 target on m ost routes on m ost days. The M TA , on the other hand, contends that a reasonable standard m ust take into account the fact that service interruptions w ill occur and when they do, the 1.35 target w ill be m issed. The M T A comm issioned Harold H irsch, an esteem ed transit expert who recently retired after 23 years as the head o f p lanning for the Chicago Transit System, to consult w ith D ana W oodbury, who for the past 16 years has been em ployed by the Southern California Rapid Transit D istrict and then the M IA , to devise a standard that is both consistent w ith the goals o f the C onsent Decree as well as with the norm s o f the transit industry. That standard is set forth in this brief. W hile it recognizes that service interruptions are a fact o f life in the transit industry, it requires that the M TA perform in a m anner consistent w ith the industry norm. It also complies w ith the request o f the FT A 's Regional Adm inistrator that the parties establish a "clearer, m ore definitive criteria for m easuring com pliance . . . ." See, Declaration o f Dana W oodbury ("W oodbury D eck"), Exhibit "A." In short, it provides a fair standard that can and should be acceptable to all parties. July 9, 1998 MTA Brief re Load Factor Compliance 46a II. THE STANDARD BY WHICH TO MEASURE COMPLIANCE WITH THE TARGET LOAD FACTOR IS BY COMPARING THE MTA'S PERFORMANCE WITH AN ESTABLISHED “BENCHMARK” IN THE INDUSTRY. The Consent Decree states: 1. Improved Perform ance Goal: R educed Load Factor Targets: M TA's perform ance in m eeting this critical objective o f responding to consum er dem and for bus services efficiently shall be m easured by the reduction in levels o f crow ding on board buses. M TA shall establish as a five-year goal to be reached by the end o f the fifth com plete fiscal year follow ing the approval o f this consent Decree, the reduction o f the m axim um load factor ceiling for all bus routes from 1.45 to 1.2 in the follow ing increm ents ("target load factors"): December 31, 1997, 1.35 June 30, 2000, 1.25 June 30, 2002, 1.2 Thereafter, M TA shall m aintain the 1.2 load factor for the duration o f this Consent Decree. 2. Load Factor Definition. "Peak load factor" shall m ean (total number o f passengers/total num ber o f seats) w hich shall be determined by com puting the highest ratio o f total num ber o f passengers to total num ber o f seats achieved during any 20 m inute w eekday peak period in the peak direction o f travel on each bus line. This load factor com putation w ould be based on a one hour tim e interval during non-peak periods. Target load July 9, 1998 MTA Brief re Load Factor Compliance 47a factors shall not be achieved by by-passing passengers at bus stops. M TA shall conduct ride checks to determine load factors using current M TA procedures and schedules. M TA shall supply the JW G w ith all such data, including on-board surveys, ride and point checks and passenger surveys, throughout the year, and inform the JW G o f any change in d a ta gathering/processing procedures. The JW G m ay request that M TA collect additional data as appropriate to m onitor com pliance with the load factor targets, (emphasis added). Despite best efforts by the M TA to schedule and operate adequate service for the purpose o f sustaining average passenger loads below the 1.35 target, it is inevitable in the transit industry that some portion o f service will be lost due to service interruptions. See, Declaration o f Harold R. H irsch ("Hirsch Deck"), ^ 7; W oodbury Deck, ^ 3. Service interruptions occur for a variety o f reasons that are beyond the M TA's - or any operator's - control and include, but are not lim ited to: (a) equipm ent breakdowns, (b) accidents, (c) excessive traffic, (d) passenger illness, (e) prolonged train crossings, (f) m issed pullouts, and (g) problem s with schedule adherence. Id. The issue is w hat is an acceptable level o f service interruptions. Id. The best way to arrive at this determ ination is to evaluate the extent o f service interruptions experienced by the M TA and com pare that to the industry norm. Id. Such a procedure ensures that the standard will not be skewed due to the age and/or the condition o f the M TA fleet. Id. July 9, 1998 MTA Brief re Load Factor Compliance 48a A. N o O perator Can R eplace Lost Service W ithin 20 M inutes. A service interruption in a 20 m inute peak period, whether the result o f a breakdow n o f a bus or som e other cause, has a direct im pact on the load factor for that 20 m inute tim e period because in m ost instances, neither the M T A nor any other large operator can replace service w ithin a 20 m inute tim e frame. H irsch D eck, f 8; W oodbury D eck, ^ 9. This is true because it is often im possible to reach the location where the interruption occurred, and then replace/repair the equipm ent and/or solve the problem , and deliver service in less than 20 m inutes. Id. In fact, even i f replacem ent buses were available at various locations, during peak periods, it still will take m ore than 20 m inutes to get a replacem ent bus into the rotation. Id. By then, the dam age is done in term s o f m aintaining the desired load factor. Id A n analysis w as perform ed to determ ine the am ount o f tim e it would take to respond to a service interruption fast enough to avoid the loss o f service capacity that w ould otherwise occur. See, W oodbury D eck, 6-7, Exhibit "B." Two alternatives w ere considered: (1) dispatching a replacem ent bus from the operating facility serving the im pacted bus line; and (2) staging equipm ent and m anpow er at the m idpoint o f bus lines. Id. In all cases, response tim e was calculated as the tim e needed to replace the disabled bus a t the point o f the service interruption added to the tim e it then took for the replacem ent bus to m ove to the poin t where an observer m onitors the service for purposes o f determ ining com pliance w ith the load factor target. Id. During peak travel periods, the analysis determ ined that replacing service from the operating facility could never be July 9, 1998 MTA Brief re Load Factor Compliance 49a accom plished w ithin a 20-minute interval. W oodbury Decl., 8-9. Even w ith staged equipm ent, the analysis determ ined that the response tim e would exceed 20 m inutes about 86% o f the time. Id. In short, by utilizing replacem ent buses the M TA cannot elim inate exceedence o f the target load factor ceiling caused by service interruptions during peak travel periods on the 77 bus lines being monitored. Id., K irsch D eck, f 9. B. Scheduling Additional Service Im poses A n Unreasonable Expense And Burden On The M TA . N ext, the alternative o f scheduling additional service was evaluated. W oodbury Deck, f 10, Exhibit "C." Based on this analysis, it was found that providing one additional bus trip in the peak direction o f travel during each 20 m inu te period as protection against the loss o f a trip from a service interruption was prohibitively expensive. Id. In order to provide such protection, each o f the 77 bus lines being m onito red for load factor com pliance m ust have an additional trip scheduled in each o f the nine 20-minute intervals spanning over a peak travel period, i.e., from 6-00 a.m. to 9:00 a.m. and from 3:00 p.m. to 6:00 p.m . Id. This level o f protection w ould increase the M TA'S peak service bus requirem ents by 33% , from 1,786 buses to 2,371 buses, Id. This level o f protection is unreasonable and excessive and w ould force the M TA to, in effect, achieve a target load factor that, for the overw helm ing majority o f the tim e periods, is far below the 1.35 that is required by the Consent Decree. / J ; H irsch D eck, % 10. C. A Peer Benchm ark Is The M ost Appropriate And Reasonable Standard To M easure The M TA 's Com pliance W ith The Target Load Factor. P laintiffs will surely argue that the reason the cost o f utilizing replacem ent buses and/or scheduling additional July 9, 1998 MTA Brief re Load Factor Compliance 50a service to counter the effects o f service interruptions is prohibitive because the M TA 's fleet suffers m any more breakdow ns than com parable transit operators. Since service interruptions that result in a loss o f service are a statistic that is annually reported under the Federal T ransit Adm inistration's N ational T ransit D atabase (form erly Section 15) program , a telephone survey w as conducted o f the 14 largest bus transit operators in the U nited States o ther than the M TA to determine the frequency o f service interruptions.1 W oodbury Decl., f 11, Exhibit "D." D ata for fiscal 15 year ("FY") 1997 was obtained from the 12 operators who responded. Each o f the responding operators provided their reported num ber o f service interruptions and annual total vehicle m iles operated. Id. Based on this inform ation, the frequency o f service interruptions w as calculated as the ratio o f total m iles operated per incident o f service interruption. W oodbury Deck, Iff 11-12, Exhibit "E." To establish a reasonable expectation for operator perform ance, a w eighted average m ileage between service interruption incidents was calculated. Id. Each operator's reported total m ileage was used as the w eighting factor because incidents occur as a function o f the quantity o f service o p e ra te d -if your buses travel 1,000 m iles each day then they will have m ore frequent breakdow ns than i f they travel only 500 m iles each day. Id. The results o f this analysis were as July 9, 1998 MTA Brief re Load Factor Compliance ’O f those operators surveyed, Boston and M inneapolis, had num bers that contained data irregularities and Philadelphia and Pittsburgh did not respond. Due to the lim ited tim e available to determ ine w hy their num bers were so different and to convert them so that they w ould provide meaningful data, Boston and M inneapolis w ere dropped from the survey. W oodbury Deck, f 11. 51a July 9, 1998 MTA Brief re Load Factor Compliance follows: • The Average M iles Between Incidents for the Twelve Operators: 2,040. • M ileage Betw een Incidents for the 12 Operators: 1,305 (lowest) - 3,719 (highest). • M ileage Betw een Incidents for the MTA: 1,667. W hen arranged in order from highest to lowest mileage betw een incidents, the M TA was found to rank in the middle o f the low er h a lf o f the operators surveyed. Id. D. The M TA's Past Perform ance. Using the above w eighted average frequency o f service interruptions for the peer operators—and accepting the proposition that it is unrealistic to expect the M TA to replace a bus w ithin the 20 m inute m onitoring period or to schedule 33% m ore buses than are required~the proportion o f tim e periods the M TA would be expected to m iss the load factor target is set forth below in this chart: 52a July 9, 1998 MTA Brief re Load Factor Compliance T im e Period E xceeding L oad F actor T arget D ay o f W eek T im e Period P eer B ench m ark A ctual M T A Q 4 1997 A ctual M T A Q 1 1998 A ctual M T A Q2 1998 A M Peak 3.14% 4.79% 3.83% 3.33% M idday 2.67% 0.38% 0.21% 0.08% W eekday PM Peak 2.77% 5.79% 4.11% 3.20% Early Eve. 3.32% 3.95% 3.46% 1.52% O verall 2.90% 3.95% 2.99% 2.39% Saturday O verall 2.82% 2.95% 1.53% 1.25% Sun./HoL O verall 2.40% 1.24% 0.38% 1.40% Note: Q2 1998 data through June 20, 1998 (12 weeks) The survey tells us that using the industry norm, we w ould expect to see service interruptions in 2.90% o f the tim e periods monitored. W oodbury Deck, f 12. Because on average the number o f buses m onitored on each route during the peak 20 minute period is three, service interruptions—by elim inating one-third o f the service for the 20 minute m onitoring period— alm ost always will cause a failure to m eet the 1.35 target. Id. Thus, one service interruption will cause the load target to be exceeded in the tim e period w hen the service interruption occurred. 53a Therefore, i f the industry norm is that we should expect service interruptions in 2.90% o f the tim e periods m onitored, then we m ust also expect that pursuant to the industry norm the target load factor will be exceeded in 2.90% o f the tim e periods monitored. W oodbury Decl., 12; H irsch Decl., f 11. The "overall" calculation establishes that the M TA 's performance systemwide during the second quarter o f 1998 was better than the industry benchm ark (2.39% vs. 2.90% ). W hen broken down by peak daily tim e periods, the M TA 's second quarter 1998 perform ance is slightly above the peer benchm ark (3.33% vs. 3.14% for AM peak and 3.20% vs. 2.77% for PM peak). W oodbury Deck, f 12; Hirsch Deck, f t 11. E. Evaluating the M TA's Perform ance Until now, no objective standard existed by w hich the M T A -or anyone else—could determine w hether the M TA's performance was consistent with the load factor requirem ents o f the Consent Decree. The M TA contends that by obtaining a load factor o f 1.35 or less in more than 97% o f the periods m onitored and by m eeting the objective standard on a systemwide basis that it had complied w ith the C onsent Decree. The plaintiffs, on the other hand, argue that failure by the M TA to achieve the target load factor in any single m onitored tim e period was a violation o f the Consent Decree. Adoption o f the criteria set forth herein w ould provide an objective standard to determine whether the M TA is in compliance w ith the Consent Decree. It w ould elim inate the situation that has existed up until now, w hich provided no objective way in which to determine w hether in fact the M TA was in compliance w ith the Consent Decree. July 9, 1998 MTA Brief re Load Factor Compliance 54a U nder the vague standard existing in the Consent Decree, the M TA -- by m eeting the target in more than 97% o f the periods m onitored - has been in com pliance w ith the load factor target requirem ents up to this po in t in time. If the Special M aster adopts the criteria set forth herein, the M TA should be given a reasonable period o f tim e to com e into conform ance w ith this new ly proclaim ed objective standard. In determ ining w hat is a reasonable period for the M TA to come into com pliance w ith this new ly proclaim ed objective standard. In determ ining w hat is a reasonable period for the M TA to come into com pliance w ith this new ly proclaim ed objective standard, the Special M aster m ust take into account certain unforeseen circum stances that - through no fault o f the M TA - will severely ham per its ability to m eet the target w ith respect to peak AM and PM w eekday tim e periods in less than six m onths (the M TA already m eets the new criteria on a system wide basis). Specifically, the M T A has approxim ately 200 currently inoperable ethanol buses in its fleet as well as approxim ately 500 CN G buses that, w hile operable, are experiencing various problem s that severely reduce their reliability. Due to failures on the part o f the m anufacturer, the 500 CN G buses have experienced substantial problem s involving fuel regulators, exhaust system failure, electronic control m odule failures and inability to achieve the driving range that the m anufacturer had claim ed they w ould achieve. All o f these problem s have been acknow ledged by the m anufacturer to exist and to be the fault o f the m anufacturer. The m anufacturer is currently w orking together w ith M TA to fix each o f these problem s, and it is hoped that these p roblem s will be resolved by the end o f the year. D eclaration o f R ichard Hunt ("Hunt Deck"), 1 4. July 9, 1998 MTA Brief re Load Factor Compliance 55a Additionally, the M TA is in the process o f re-powering approxim ately 200 inoperable ethanol buses currently in its fleet and converting them to diesel. See D eclaration o f Habib B alian ("Balian Decl."), f 4. These 200 buses are currently not in service because their engines failed and it was not econom ically feasible to replace them w ith a sim ilar engine. This action w ill add approxim ately 20 buses per m onth until com pleted. M oreover, the M TA is currently negotiating with the vendor perform ing the engine conversion to accelerate the process. A s these buses are returned to active service, they will replace the oldest and least reliable buses currently in service. This w ill significantly im prove the M TA's fleet reliability and its ability to m eet the target load factor. Once again, it should be em phasized that the fact that these 200 ethanol buses are inoperable is not in any wav the fault o f the MTA. Hunt Decl., TTf 3-5. In short, because through no fault o f the M TA, it has approxim ately 700 buses that are either inoperable or are experiencing service interruptions far beyond what is normal in the industry, the M TA requests that the Special M aster take such unforeseen circumstances into consideration and allow the M TA six m onths to m eet the new objective standard with respect to peak AM and PM weekday tim e periods, which will provide the manufacturers adequate tim e to rectify their m istakes. (Due to the shortage o f tim e, it has not been possible for the M T A to provide a detailed analysis to show precisely w hat im provem ents can be expected once the problem s with the 700 buses have been rectified. Should the Special M aster desire such an analysis, the M TA would be happy to provide it.) July 9, 1998 MTA Brief re Load Factor Compliance 56a F. The Criteria Adopted by the Special M aster Should N ot be Based on an A nalysis o f Individual Bus Lines. The standard proposed by the M TA analyzes tim e periods, such as A M peak, PM peak, etc., rather than individual bus lines. W oodbury Decl.,^[ 13; H irschD ecl.,^112. The reason a tim e period analysis is more desirable than a line-by-line analysis is that the form er provides results that are m uch more reliable. Id. For exam ple, an accident or some other unexpected event can severely affect the ability o f any individual line to m eet the target load factor on a given day. Id. Experience show s that an accident can affect no t one but a num ber o f m onitoring periods and can cause a particular line to far exceed the 1.35 target. Id. O n the other hand, by looking at various tim e periods, we can obtain a m uch more accurate understanding o f w hether the M TA is in fact in com pliance w ith the 1.35 target load factor. Id. III. THE CURRENT PLANS TO ADD BUSES AND July 9, 1998 MTA Brief re Load Factor Compliance MAKE CHANGES IN OPERATIONS AND MAINTENANCE WILL SIGNIFICANTLY I M P R O V E T H E M T A ' S O V E R A L L PERFORM ANCE AND TARGET LOAD FACTOR. Recently, the M TA made a num ber o f changes in the Operations D epartm ent to address issues and concerns in the areas o f m anagem ent and operations. Since June 8, 1998, the M TA appointed Jim Reichert as the Interim Executive Officer - Operations at the M TA. Mr. Reichert has prom ptly taken actions to address and improve problem s with the maintenance program , on street supervision, training o f operators, and accountability w ithin the 11 divisions. See, Declaration o f Jim 57a Reichert ("Reichert Decl."), f 3. First, two m aintenance superintendents have been added at each division to w ork day and might shifts. The direct effect o f this addition is to increase the num ber o f repairs that occur overnight. Id. This will result in m ore equipm ent availability and accessibility as the morning peak periods begin and thus reduce the num ber o f service interruptions throughout the day caused by equipm ent failure. Id. As previously shown, the reduction o f service interruptions is directly linked to the target load factor. The need for this change arises from the previous lack o f adequate supervision in the evening hours when m ost repairs and m aintenance o f equipm ent take place. Id. In addition to the above changes, the M TA has taken steps to hire additional clerical personnel and an assistant transportation manager at each division. Reichert D eck, If 4. By adding this support, transit supervisors will have the tim e needed to conduct more on-street supervision and training o f operators. Id In the past, transit supervisors were performing clerical work in addition to their supervisory duties, and were not spending enough time out in the field to properly supervise and oversee the operation o f the system, including operators running ahead o f schedule. Id. Running "hot" or ahead o f schedule, has the effect o f increasing the gap betw een buses and thus increases passenger loads for later buses. Id. Accordingly, by increasing the tim e supervisors spend on the street, the num ber o f drivers running "hot" or ahead o f schedule w ill be reduced and there will be a more even distribution o f passengers on each bus. Id. Another result from this action is that service interruptions will be reduced to the extent that the transit supervisor is available to reach the location o f the service interruption and assist in replacing service. Additional July 9, 1998 MTA Brief re Load Factor Compliance 58a training will improve the assignm ent o f bus drivers and reduce service interruptions caused by driver unavailability. Id. The changes and actions taken thus far are standard procedures that are utilized in the industry and w ill resu lt in improved systems operations. R eichert D eck, 1 5, Hirsch D eck, U 13. They will have the cum ulative effect o f im proving service delivery and hence will reduce even further the target load factor w ithin the next few m onths. IV. THE MTA MAY DETERMINE THE LOAD FACTOR WITHOUT DATA ON "BY-PASSED" PASSENGERS. A. The Consent Decree Perm its The M TA To Use its Own Procedures T o D eterm ine The Load Factor. The Consent Decree provides tha t the "M TA shall conduct ride checks to determ ine load factors using current MTA procedures and schedules. " The M TA 's procedures and schedules which have been in effect for at least 10 years, do not include gathering data on "by-passed" passengers. W oodbury Deck, f 14. Thus, the fact that the M TA does not gather data on "by-passed" passengers 2 is not a v io lation o f the C onsent Decree. July 9, 1998 MTA Brief re Load Factor Compliance B. There Is N o A llegation O r D em onstration That The M TA Is Bypassing Passengers. The Consent Decree states tha t M TA m ay not intentionally "by-pass" passengers at bus stops in an effort to m eet the target load factor. Sim ply u sing data that does not account for by-passed passengers is no t synonymous w ith intentionally by-passing passengers and is no t a violation o f the Consent Decree. 59a C. There Is N o Proper M ethod To Collect D ata On By-Passed Passengers. Plaintiffs' contention that the M TA violates the Consent Decree by calculating the load factor w ithout data on by-passed passengers ignores the fact that there are serious problem s associated w ith gathering data on by-passed passengers. W oodbury Decl., f 14; H irsch DecL, f 14. O ne o f the prim ary problem s occurs because a passenger is counted when that passenger is by-passed, and counted once again when the passenger boards a bus. Id. This leads to double counting o f passengers. Id. A nother problem is determ ining w ho is a "by-passed" passenger. Id. Unless individual interview s are conducted at each bus stop, it is im possible to determ ine w ho is waiting for which bus at bus stops served by m ultiple bus lines. Id. It is also im possible to determ ine who am ong the people standing in the vicinity o f a bus stop is waiting for the bus in order to ride it, as opposed to those who are there to m eet som eone arriving by bus. Id. Sim ilarly, it is difficult to determ ine whether a passenger is "by-passed" i f tw o buses arrive w ithin a few m om ents o f each other, i.e., both buses being w ithin the sight o f the observer at the same tim e, and the first bus does not stop, but the second bus does. Id. There is no m ethod to properly account for this occurrence. Id. Finally, there is no procedure to determ ine whether a passenger should be considered "by-passed" in the event a dispatcher or road supervisor orders a bus to skip several stops to even the spacing betw een buses, or close a gap created by a m issing trip. Id. In essence, because there is no unam biguous m eans o f determining who is a pass-by, nor w ith w hich bus they should be associated, to im pose such a requirem ent on the M TA is not July 9, 1998 MTA Brief re Load Factor Compliance 60a only outside the scope o f the Consent Decree, but inappropriate in light o f the inaccuracies inherent in such data. D- The Common Practice In The Industry Does N ot Include Accum ulating D ata On By-passed Passengers in Determ ining the Load Factor The standard in the industry is consistent w ith the M T A ’s practice. In a survey o f twelve o f the largest bus operators in the country, it was found that, like the M TA, seven do no t account for by-passed passengers to determine the load factor, three do not account for by-passed passengers in any m anner, and two did not respond. See, W oodbury Deck, ^ 15. B ased on these findings, it would be unreasonable to impose a duty on the M TA to account for by-passed passengers when tha t is clearly not the comm on practice for m ajor biis operators in the U .S. Id.-, H irsch Deck, 1 14. V. THE MTA MAY DETERMINE THE LOAD FACTOR BY ANALYZING/CATEGORIZING MONITORING DATA INTO FIXED MINUTE INTERVALS A. The Consent Decree perm its The M TA To Use Its Own Procedures To D eterm ine The Load Factor. The Consent Decree provides that the "M TA shall conduct ride checks to determine load factors using current MTA procedures and schedules." The M TA's procedures and schedules in existence at the tim e o f the negotiation o f the C onsent D ecree—and for at least 10 years prior to the Consent D e c ree -u sed fixed 20 minute tim e intervals. W oodbury Deck, If 16. M TA 's procedures include two m echanism s for reporting/analyzing ride check or point check loading data. The July 9, 1998 MTA Brief re Load Factor Compliance 61a first is a periodic report (the Service Capacity/U tilization Report) prepared by the Operations Planning Departm ent, following service changes; the second is an analytic tool ("Headway Sheets") used by the schedule makers w henever a check is conducted. Id. Each o f these tools utilizes fixed 20- m inute tim e periods (hourly time periods at off-peak tim es). Id. W hile negotiating the Consent Decree, the plaintiffs had the opportunity to negotiate a change or alteration o f the procedures and schedules used by the M TA to determ ine the load factor. They never even raised the issue. Finally, the correct interpretation o f the use o f the word any in the referenced portion o f the Consent Decree is with regard to any o f the tim e periods m onitored, not any 20-m inute interval w hich is governed, pursuant to the words o f the Consent Decree, by prior M TA practice. B. The Common Practice In The Industry Uses Fixed Time Intervals In Determining the Load Factor. N ot Sliding Intervals. The standard in the industry is consistent w ith the M TA's procedures. In a survey o f twelve o f the largest bus operators in the country, it was found that, like the M TA, nine operators use fixed tim e intervals and only three use a floating or sliding w indow to determine the load factor. W oodbury Deck f 16. Based on these findings, it would be unreasonable to impose a duty on the MTA to analyze its data by using sliding tim e intervals versus fixed tim e intervals for load factor analysis w hen that is clearly not the comm on practice among operators in this country. Id: Hirsch Deck ‘ [f 15. July 9, 1998 MTA Brief re Load Factor Compliance 62a July 9, 1998 MTA Brief re Load Factor Compliance VI. CONCLUSION. For the reasons set forth above, the M T A requests that the approach presented be adopted to determ ine whether it has com plied w ith the Consent Decree. Dated: July 8 ,1998 R espectfully subm itted, Is/ K enneth K lein ________ K EN N ETH KLEIN GA BRIELA M EJIA RIO R D A N & M CKINZIE 300 South G rand Avenue 29th Floor Los A ngeles, California 90071- 3109 Telephone: (213)629-4824 Facsim ile: (213)229-8550 OFFICE OF TH E LOS A N G ELES CO U N TY CO UN SEL DA VID B. K ELSEY , A ssistant County Counsel JO Y CE L. CH A N G , Senior D eputy County Counsel One G atew ay P laza Los A ngeles, California 90012-2930 Telephone: (213)922-2000 A ttorneys for Defendants 63a July 9, 1998 MTA Brief re Load Factor Compliance PROOF OF SERVICE STATE OF CALIFORNIA, CO UN TY OF LOS ANGELES I am em ployed in the county' aforesaid; I am over the age o f 18 years and not a party to the w ithin action; my business address is 300 South Grand Avenue, Los Angeles, California 90071-3109. On July 8, 1998, I served the foregoing docum ent(s) described as The MTA's Brief re Load Factor Compliance Standard, Declarations of Dana Woodbury, Harold Hirsch, Habib Balian, James Reichert and Richard Hunt on interested parties in this action by placing a true copy thereof enclosed in a sealed envelope addressed as follows: D onald T. Bliss, Jr., Esq. O 'M elveny & M yers LLP 555 13th Street, N. W. W ashington, D. C. 20004-1109 (VIA FEDEX) Constance Rice, Esq. E. Richard Larson, Esq. N A A C P Legal D efense and Educational Fund, Inc. Suite 208 315 W est N inth Street Los Angeles, California 90015 (VIA PERSONAL DELIVERY) I caused such envelopes to be delivered as stated above. I declare that I am employed in the office o f a m em ber o f the bar o f this court at whose direction the service w as made. 64a July 9, 1998 MTA Brief re Load Factor Compliance Executed on July 8 ,1998 , at Los Angeles, California. Jill D. Howell