Jenkins v. Herring Reply Brief for Petitioners

    E RICHARD LARSON 
THEODORE M. SHAW 
NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. 
315 West Ninth Street, Suite 208 
Los Angeles, CA 90015 
(213)624-2405 
(213)624-0075 (fax)

CONSTANCE L RICE 
ENGLISH, MUNGER & RICE 
801 South Grand Avenue, Suite 1900 
Los Angeles, CA 90017 
(213)615-1660 
(213) 615-1673 (fax)

ELAINE R. JONES 
NORMAN J CHACHKIN 
NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
(212) 226-7592 (fax)

Attorneys for Plaintiffs and the Plaintiff Class

UNITED STATES DISTRICT COURT 

CENTRAL DISTRICT OF CALIFORNIA

STAGE II PROCEEDING BEFORE SPECIAL MASTER DONALD T. BLISS, JR.

LABOR/COMMUNITY STRATEGY CENTER, 
et al.,

Plaintiffs,

vs.

LOS ANGELES COUNTY 
METROPOLITAN TRANSPORTATION 
AUTHORITY and 
JULIAN BURKE,

Defendants.

CASE NO CIV 94-5936 TJH (Mcx)

IN RE LOAD FACTOR COMPLIANCE 
INTERPRETATION ISSUES

REPLY BRIEF FOR PLAINTIFFS AND 
THE PLAINTIFF CLASS ON 
PLAINTIFFS’ MOTION FOR 
RECONSIDERATION OF THE SPECIAL 
MASTER’S MEMORANDUM DECISION 
AND ORDER AND IN SUPPORT OF 
THEIR MOTION TO STRIKE 
INADMISSIBLE EXTRINSIC EVIDENCE



Table of Contents

Page

Argument ..................................................................................................................................  1

1 Local Rule 7.16 does not apply to Plaintiffs’ Motion for Reconsideration ..........2

2. The declaration o f Thomas A. Rubin may properly be considered in
connection with the determination of this motion .................................................... 3

3. The application of a de minimis standard contemplated by the Special
Master’s July 15 ruling improperly limits the remedy ..............................................4

4. Defendants fail to justify their interpetation of the phrase “any 20 minute
weekday peak period” in the Consent Decree ......................................................... 6

5. By-passed passengers must be considered in determining compliance with the
load factor targets ...........................................................................................................7

6. The Special Master should not delay in directing MTA to purchase new buses
...........................................................................................................................................7

Conclusion ....................................................................................................................  9

Table of Authorities

Cases.

Boaz v. Mutual Life Ins. Co. o f New York, 146 F.2d 321 (8th Cir. 1944) ..................................  3n

Withrow v. Concannon, 942 F.2d 1385 (9th Cir. 1991) ......................................................... 5n, 6n

Rules.

Fed. R. Civ. P. 59 ................................................................................................................. 3n

Local Rule 7, United States District Court for the Central District of California .........................2

Local Rule 15, United States District Court for the Central District o f California .................... 3n

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Table of Authorities (continued)

Page

Special Master Rulings

Memorandum Decision and Order (July 15, 1998) 

Procedural Order (June 29, 1998) .........................

passim

. . . .  4

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E. RICHARD LARSON 
THEODORE M. SHAW 
NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC 
315 West Ninth Street, Suite 208 
Los Angeles, CA 90015 
(213) 624-2405 
(213) 624-0075 (fax)

CONSTANCE L. RICE 
ENGLISH, MUNGER & RICE 
801 South Grand Avenue, Suite 1900 
Los Angeles, CA 90017 
(213) 615-1660 
(213) 615-1673 (fax)

ELAINE R. JONES 
NORMAN J. CHACHKIN 
NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. 
99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
(212) 226-7592 (fax)

Attorneys for Plaintiffs and the Plaintiff Class

UNITED STATES DISTRICT COURT 

CENTRAL DISTRICT OF CALIFORNIA

STAGE II PROCEEDING BEFORE SPECIAL MASTER DONALD T. BLISS, JR.

LABOR/COMMUNITY STRATEGY CENTER, 
et al.,

Plaintiffs,

vs.

LOS ANGELES COUNTY 
METROPOLITAN TRANSPORTATION 
AUTHORITY and 
JULIAN BURKE,

Defendants.

CASE NO. CIV 94-5936 TJH (Mcx)

IN RE LOAD FACTOR COMPLIANCE 
INTERPRETATION ISSUES

REPLY BRIEF FOR PLAINTIFFS AND 
THE PLAINTIFF CLASS ON 
PLAINTIFFS’ MOTION FOR 
RECONSIDERATION OF THE SPECIAL 
MASTER’S MEMORANDUM DECISION 
AND ORDER AND IN SUPPORT OF 
THEIR MOTION TO STRIKE 
INADMISSIBLE EXTRINSIC EVIDENCE



Plaintiffs filed their Motion for Reconsideration and Motion to Strike to permit the Special 

Master to correct legal and procedural errors in his July 15 Memorandum Decision and Order 

Defendants’ Opposition raises no meritorious basis for denying the relief sought by Plaintiffs.

1 Local Rule 7.16 does not apply to Plaintiffs’ Motion for Reconsideration Defendants 

argue, first, that the Special Master should not reconsider his ruling because Plaintiffs’ motion rests 

upon legal grounds rather than upon the limited bases for reconsideration permitted by Local Rule 

7.16 of the United States District Court for the Central District o f California. Assuming arguendo 

that proceedings before the Special Master are governed by the Local Rules, Rule 7.16 is inapplicable 

to the motion filed by Plaintiffs. Defendants quote, but fail to appreciate the import of, the language 

of Local Rule 7.16: “A motion for reconsideration of the decision on any motion may be made only 

on the [specified] grounds . ” (emphasis and bracketed language supplied). Indeed, the entirety of 

Local Rule 7 regulates motion practice.

The Special Master’s July 15 ruling was not occasioned by the filing o f a motion but rather 

by the District Court’s reference of disputes under the Consent Decree to the Special Master, to 

determine and insure compliance with the Consent Decree, and by the Special Master’s decision, after 

discussions with counsel, to bifurcate the determination o f compliance with the initial load factor 

requirement of the Decree. Consistent with that decision, the Special Master directed the parties to 

brief legal questions regarding interpretation of the language o f the Decree, postponing factual issues 

to a later stage. Thus, the July 15 ruling is analogous to a determination on the merits in one phase 

of a bifurcated proceeding.

Local Rule 7.16 does not apply to a motion for reconsideration of such a determination. Nor 

is there any provision o f the Local Rules which places a limitation upon the grounds that may be

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advanced in support of a request for reconsideration of such a determination. Rather, consistent with 

the Local Rules, parties may, by the filing of such a motion, afford the Special Master or the District 

Court an opportunity to correct errors of law rather than await the outcome of appellate 

proceedings.1

2. The declaration of Thomas A. Rubin may properly be considered in connection with 

the determination of this motion Defendants ask that the declaration o f Thomas A Rubin 

submitted with the Motion for Reconsideration “be stricken from the record” (MTA’s Opposition, 

at 3), arguing that it “contains information . . . that could have-and should have-been presented in 

Plaintiff s [s/c] opening brief’ (id. at 7). Defendants make two related errors here. First, the Rubin 

Declaration was submitted not for the purpose of supporting an interpretation o f the Consent Decree 

that is contrary to its unambiguous language, nor for the purpose of having the Special Master 

determine the factual matters that it addresses. Rather, it was submitted only to demonstrate that 

Plaintiffs have an evidentiary basis to dispute the facts asserted in the extrinsic evidence improperly 

submitted by Defendants prior to the Special Master’s July 15 ruling.2

'Local Rule 15 establishes procedures for Motions for New Trial; significantly. Rule 15.1 
provides that such motions may be made on any of the grounds specified in Fed. R. Ci v. P. 59(a). 
The Local Rules require no specific procedures, and impose no limitations, upon motions to alter or 
amend judgments pursuant to Fed. R. Civ. P. 59(e), which was added to Rule 59 in 1946 specifically 
to authorize courts to correct legal errors in their rulings. See Advisory Committee Notes to Fed. 
R Civ. P. 59, citing Boaz v. Mutual Life Ins. Co. o f  New York, 146 F.2d 321 (8th Cir. 1944).

2See Plaintiff s Brief in Support of their Motion for Reconsideration, etc., at 7 n.4 (“[tjhese 
attested-to matters, among others, most certainly are disputed by plaintiffs and the plaintiff class. See 
Declaration o f  Thomas A. Rubin at 5-15 (Aug. 5, 1998), submitted [herewith]”), 10 n. 5 (“[plaintiffs 
most certainly dispute that collecting by-pass data is either complex or at all difficult. . . . Declaration 
of'Thomas A. Rubin at 1-5 (Aug. 5, 1998), submitted herewith”). These are the only references to 
Mr. Rubin’s declaration in Plaintiffs’ Brief in support of their Motion for Reconsideration.

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Second, Plaintiffs certainly should not have submitted the Rubin Declaration with their 

opening Brief. The Special Master’s June 29, 1998 Procedural Order directed “the parties [to] 

submit simultaneous briefing on the [specified] foundation legal issue . . . four sub-issues . . . [and] 

other legal issues relevant to the foundation legal issue” (id. at 1, 2 [emphases and bracketed 

language supplied]). As noted above, the compliance proceedings were bifurcated, with factual 

determinations postponed until after resolution of questions about interpretation o f the language of 

the Consent Decree. As we argued in our opening Brief on the present Motion for Reconsideration 

(at 7-8, 10-11), it was improper for Defendants to submit and to rely upon extrinsic evidence. It 

would have been equally improper for Plaintiffs to have submitted extrinsic evidence with their Brief.

3 The application of a de minimis standard contemplated bv the Special Master’s July 

15 ruling improperly limits the remedy Defendants’ argument on this point (MTA’s Opposition, 

at 4-5) reinforces our contention that the Special Master erred in directing that any remedy shall be 

shaped on a line-by-line basis and that a "de minimis” standard shall be developed and applied on a 

line-by-line basis:

It is clear that a de minimus [s/'c] standard is not itself remedial but rather is 
intended to obviate the need for an immediate remedial plan for specific bus lines 
where the periods in which “the load factors [that] are exceeded are infrequent, likely 
attributable to unique and nonrecurring circumstances or events, and not reflective of 
a continuing condition of overcrowding.” While these bus lines “will not require 
immediate remedial enforcement action,” they will be “designated for remedial action” 
if they exceed the standard set forth by the JWG. In other words, remedial 
enforcement action will be implemented, at some point, if the de minimus [.v/c] 
standard is exceeded.

(Id. at 5.)3 Therefore, as Defendants — and Plaintiffs — understand the July 15 ruling, a de minimis

’Defendants also argue that reconsideration is unnecessary because the Special Master has 
reserved judgment on what the remedy for noncompliance, if any, shall be. MTA’s Opposition, at 
6 (“[t]he phrase Then . . .  a remedy must be fashioned’ makes clear that no remedy has been arrived

4



standard is to be applied to each individual bus line. Even if every bus line operated by MTA for 

which ride data are available showed noncompliance with the load factor reduction requirements of 

the Consent Decree, so long as that noncompliance -  applied to each line in isolation -  is within the 

de minimis ceiling, no remedial action shall be required.

Plaintiffs believe that this is an incorrect and inappropriate approach to the exercise of a 

court’s -  and the Special Master’s -  inherent remedial discretion to withhold the issuance of 

injunctive relief where noncompliance is truly de minimis. As we argued in our opening Brief (at 5), 

“[t]he genesis o f this lawsuit was about a systemic problem (MTA’s unwillingness to fund and to 

provide for its bus system relied on by minority transit-dependent bus riders). And the settlement of 

this lawsuit was based on MTA’s promises to remedy this systemic problem by improving bus 

service.” De minimis noncompliance can be determined only by examining systemic performance, 

taking into account all available data relating to the load factor requirements of the Decree, rather 

than by excluding instances of noncompliance from the analysis a p r io ri4 This is particularly so in

at .). But the July 15 ruling announces that any such remedy shall be constrained by the line-by-line 
de minimis standard. “A de minimis standard is intended to obviate an immediate remedial plan for 
specific bus lines where the periods in which the load factors are exceeded are infrequent, likely 
attributable to unique and nonrecurring circumstances or events, and not reflective of a continuing 
condition of overcrowding. Bus lines which meet these de minimis criteria, while technically falling 
short of the target load factor, will not require immediate remedial or enforcement action.” (July 15 
Memorandum Decision and Order, at 7-8 [underlining supplied].) We have little doubt that, had 
Plaintiffs not sought reconsideration o f this ruling and/or pursued review before the District Court, 
but made the argument later in these proceedings that the scope of a remedy remains open, 
Defendants would argue that the July 15 ruling was binding as the “law o f the case.”

d e fen d an ts’ attempt to find support for the July 15 ruling in Withrow v. Concannon is 
unavailing. Nothing in that Court o f Appeals’ decision suggests that the Court would have 
countenanced a holding that, for example, a certain number of instances o f delay at each welfare 
office in the state, beyond the time limits imposed by the regulations, would be disregarded in 
determining whether there was de minimis noncompliance by the state agency. Rather, the Court 
remanded with directions to the District Court to “consider whether, in light o f circumstances then

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light of the flexibility already built into the Consent Decree requirements with respect to load factor 

targets (see July 15 Memorandum Decision and Order at 6-7)

Because a de minimis determination can be made, in our view, only upon consideration of all 

available data, rather than after excluding line-by-line instances of noncompliance. Plaintiffs have 

sought immediate reconsideration of the July 15 ruling instead of having the JWG convene for the 

purpose of developing and applying an incorrect compliance standard.

4 Defendants fail to justify their interpretation of the phrase uanv 20 minute weekday  

peak period” in the Consent Decree Defendants’ short responsive argument on this issue (MTA’s 

Opposition, at 6-7) assumes the very point at issue: whether the phrase, “any 20 minute weekday 

peak period,” in Section II.A.2. of the Consent Decree, means “any fixed  20 minute weekday peak 

period as defined under current MTA procedures and schedules." Of course, the italicized language 

does not appear in the sentence. To paraphrase MTA, “[i]f [Defendants] thought this was a 

significant problem, they should have thought of it 2 years ago when they negotiated the Consent 

Decree.”

The issue is simply one of contract language interpretation. The subsequent sentence in the 

Decree concerning MTA s obligation to “conduct ride checks to determine load factors using current 

MTA procedures and schedules” establishes how the data are collected, but as we argued in our 

opening Brief (at 8), it does not purport to determine how the data should be arrayed or analyzed.

prevailing, the state has eliminated all hut the truly inevitable instances o f  n o n c o m p lia n ce 942 F .2d 
at 1389 (emphases supplied).

Application o f some “de minimis” standard to individual bus lines in effect would create a 
“safe harbor” level o f noncompliance about which MTA need not be concerned rather than require 
MTA to comply “as strictly as is humanly possible,” Withrow, 942 F.2d at 1388.

6



Not only does the phrase, “any 20 minute weekday peak period,” in the earlier sentence, fail to cross- 

reference either the subsequent language or the MTA’s “current procedures and schedules,” but it 

strongly supports the use of a “sliding window” approach to computing the data in order to achieve 

the purposes of the Decree. As with the de minimis standard approach, the Special Master erred in 

excluding consideration of “sliding window” data in determining compliance or noncompliance with 

the load factor targets (see Memorandum Decision and Order, at 10)

5 By-passed passengers must be considered in determining compliance with the load 

factor targets Defendants simply assert that our arguments on this issue “lack[] any support” 

(MTA s Opposition, at 7). They fail to explain how it can be justifiable for MTA and the Special 

Master to shield their eyes from information about by-passed passengers in determining whether the 

load factor targets of the Consent Decree have been met — when the Decree plainly states in Section 

II.A.2. that “[tjarget load factors shall not be achieved by by-passing passengers at bus stops.” MTA 

is required by the plain language of the Decree to collect information about by-passed passengers. 

As we argued in our opening Brief, no canon of contract construction allows the Consent Decree to 

be rewritten (albeit this is described as a matter o f interpretation) so as to state that “such data 

[should not be included] in the compliance calculations except where there is evidence [presented by 

Plaintiffs] that operators are intentionally by-passing passengers in order to meet the load factor 

targets” (July 15 Memorandum Decision and Order, at 11 [bracketed language supplied]).

6 The Special Master should not delay in directing MTA to purchase new buses In 

the July 15 ruling, the Special Master declined to direct the procurement of the 102 new buses 

required by the Consent Decree “eventually” to be purchased until it was “determined that MTA has 

not met the target load factor on certain lines” (Memorandum Decision and Order, at 12). We

7



submit that when the errors addressed in earlier sections of this Reply Brief are corrected, and in light 

of the ride check data already a part of this record, there is no basis for further delay. Accordingly 

we request that the Special Master order MTA to implement that requirement o f the Decree as 

rapidly as possible.

Ill

III

III

III

III

III

III

III

III

III

III

III

III

III

III

III

III

III

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Conclusion

The Special Master should reconsider and modify the July 15 Memorandum Decision and 

Order to insure that the determination of load factor target compliance is made on the basis of all 

relevant data and in accordance with the plain meaning of the language of the Consent Decree and 

well-established principles of contract construction, as set forth above and in Plaintiffs’ opening Brief 

and to insure that the purposes of the Consent Decree are achieved as promptly as possible.

Dated: August 24, 1998

Respectfully submitted,

E. RICHARD LARSON 
THEODORE M. SHAW 
NAACP LEGAL DEFENSE AND

EDUCATIONAL FUND, INC. 
315 West Ninth Street, Suite 208 
Los Angeles, CA 90015 
(213) 624-2405 
(213) 624-0075 (fax)

CONSTANCE L. RICE 
ENGLISH, MUNGER & RICE 
801 South Grand Avenue, Suite 1900 
Los Angeles, CA 90017 
(213) 615-1660 
(213) 615-1673 (fax)

NAACP LEGAL DEFENSE AND
EDUCATIONAL FUND, INC 

99 Hudson Street, 16th Floor 
New York, NY 10013 
(212) 965-2200 
(212) 226-7592 (fax)

Attorneys for Plaintiffs and the Plaintiff Class

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PROOF OF SERVICE

STATE OF NEW YORK, COUNTY OF NEW YORK

I am admitted to practice in and employed in the county aforesaid; I am over the age of 18 
years and not a party to the within action; my business address is 99 Hudson Street, 16th Floor, New 
York, New York 10013.

On August 24, 1998, I served the foregoing document described as REPLY BRIEF FOR 
PLAINTIFFS AND THE PLAINTIFF CLASS ON PLAINTIFFS’ MOTION FOR 
RECONSIDERATION OF THE SPECIAL MASTER’S MEMORANDUM DECISION AND 
ORDER AND IN SUPPORT OF THEIR MOTION TO STRIKE INADMISSIBLE 
EXTRINSIC EVIDENCE upon interested parties in this action, by facsimile transmission to the 
respective telephone numbers shown below and by placing a true copy thereof enclosed in a sealed 
envelope, with sufficient postage or overnight delivery fees attached, addressed as follows:

DONALD T BLISS, J R , ESQ.
O’MELVENY & MYERS LLP
Suite 500 West
555 Thirteenth Street, N.W.
Washington, D C. 20004-1109 
Fax No.: (202) 383-5414
(VIA FAX and UNITED PARCEL SERVICE OVERNIGHT DELIVERY)

HERNAN D VERA, ESQ 
O’MELVENY & MYERS LLP 
400 South Hope Street 
Los Angeles, California 90071-2899 
Fax No.: (213) 430-6407
(VIA FAX and UNITED PARCEL SERVICE OVERNIGHT DELIVERY)

KENNETH KLEIN, ESQ 
GABRIELA MEJIA, ESQ.
RIORDAN & McKINZIE 
29th Floor
300 South Grand Avenue 
Los Angeles, California 90071-3109 
Fax No.: (213) 629-4824 
(VIA FAX and U.S. MAIL)

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STEVEN J. CARNEVALE, ESQ.
JOYCE L. CHANG, ESQ.
OFFICE OF THE LOS ANGELES COUNTY COUNSEL
One Gateway Plaza
Los Angeles, California 90012-2930
Fax No.: (213) 922-7432
(VIA FAX and U S. MAIL)

I caused such telefacsimile transmissions and envelopes to be delivered as stated above. 

Executed on August 24, 1998 at New York, New York.

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