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

    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



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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

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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:



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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.



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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.



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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.



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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



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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



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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



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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.



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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



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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 ):____________________



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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



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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.



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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):____________________



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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