Bus Battle Rages in Federal Courtroom

Listening intently to a case with far-reaching implications, a three-judge panel of the 9th Circuit Court of Appeals on Tuesday heard the Metropolitan Transportation Authority sharply challenge a federal judge’s order directing the agency to buy more buses to reduce overcrowding.

MTA lawyer Shirley M. Hufstedler argued that Chief U.S. District Judge Terry J. Hatter Jr. was wrong when he ordered the agency to purchase 248 new buses last summer.

Hatter acted after finding that the MTA failed to comply with a landmark consent decree between the agency and organized bus riders. The decree requires improvements in bus service and reductions in the number of passengers forced to stand on board MTA buses.

Hufstedler pointedly questioned “how in the world you are going to have a federal court” running one of the world’s most complicated transportation systems.

She said the overcrowding limits established in the decree were “never intended to be absolute” or so precise that the MTA could never exceed them. Instead, she said, the so-called target load factors were goals that the agency strives to meet on an average day.

Hufstedler, a former appellate justice and education secretary in the Jimmy Carter administration, said the MTA does not have the money to operate the extra buses. And she added, “Nothing in [the decree] requires MTA to buy buses.”

She called on the panel not only to overturn Hatter’s order, but also to establish a process for reopening the consent decree if one of the parties wants it modified.

On the other side, civil rights attorney E. Richard Larson told the judges that the decree, signed in October 1996, set specific deadlines and limits on overcrowding.

Larson, representing the Bus Riders Union and NAACP Legal Defense and Educational Fund, said the decree directed the MTA to meet target load factors as soon as possible and reallocate sufficient funds from other programs to do so. He rejected the MTA’s contention that the agency cannot find the money to operate more buses.

He said Hatter was correct in ordering the bus purchase after finding that the agency failed to meet a December 1997 limit of no more than an average of 15 passengers standing on its buses during any 20-minute peak period.

In a series of questions to the lawyers, Judge Cynthia Holcomb Hall of Pasadena appeared receptive to the MTA’s position. She repeatedly questioned Larson’s interpretation of the decree. “I’m not sure I read it the same way you do,” she told him at one point.

Hall said the court is confronted with a political problem of allocating resources among Pasadena, the San Fernando Valley and the Eastside that is “very difficult to handle via litigation.”

Judge Barry G. Silverman of Phoenix took a different approach, asking Hufstedler if there was a less intrusive way for the federal courts to seek the MTA’s compliance. He observed that the decree set up a “Rube Goldberg system of resolving disputes” involving a court-appointed special master, Washington attorney Donald T. Bliss, and then the federal courts.

Hufstedler replied that the federal courts are in no position to direct how one portion of a complex transportation system is run.

The MTA won a temporary stay of Hatter’s order from a different 9th Circuit panel last fall pending the outcome of this week’s hearing.

Judge James R. Browning of San Francisco presided over the proceedings Tuesday and asked no questions. No timetable was set for the court’s ruling.

The courtroom clash, which lasted less than an hour, was watched by a hushed crowd of MTA officials, Bus Riders Union members and attorneys. It was the highest-level judicial proceeding since the decree was signed. The agreement avoided a trial over a federal civil rights lawsuit brought by bus rider groups.

Larson said the MTA settled because evidence showed that the agency made a deliberate choice to build expensive rail lines and not to adequately fund the bus system used primarily by the poor and minorities. This resulted in an “aged and dilapidated bus fleet” too small to meet the demand and led to the overcrowding problem, he said.

Hufstedler insisted that the matter is not a civil rights case but an issue involving performance on a contract the MTA signed. “It isn’t a question of the haves and have-nots,” she said, since poor people ride not only buses but also rail lines.

The crux of the dispute remains whether the MTA did or did not meet the first of the target load factors. Hufstedler said the MTA is in substantial compliance with the decree. “It hit the target 98% of the time on average,” she said.

The bus rider advocates disagree strongly, saying the MTA is using a different method of calculating compliance than the one ordered by Bliss, the special master.

Outside court, civil rights attorney Constance Rice, who brought the original lawsuit, said the MTA has not lived up to the agreement. “This is a fight about whether this decree means anything,” she said. “. . . It is clear what we are talking about is a two-tier, separate and unequal system of transportation.”