Case 3:05-cv-01597-EDL Document 137 Filed 11/01/2007 Page 1 of 32

1 BILL LANN LEE (State Bar No. 108452)

MARGARET E. HASSELMAN (State Bar No. 228529)

2 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.

1330 Broadway, Suite 1800

3 Oakland, CA 94612

Telephone: (510) 839-6824

4 Facsimile: (510) 839-7839

Email: blee@lewisfeinberg.com

5

mhasselman@lewisfeinberg.com

6 Attorneys for Plaintiffs Sylvia Darensburg, Virginia Martinez, Vivian Hain, and the Plaintiff Class; and Plaintiff
7 Communities for a Better Environment

8 Grant P. Fondo (State Bar No. 181530

Jessica Valenzuela Santamaria (State Bar No. 220934)

9 Heather Dunn Navarro (State Bar No. 238158)

COOLEY GODWARD KRONISH LLP

10 5 Palo Alto Square

3000 El Camino Real

11 Palo Alto, CA 94306

Telephone: (650) 843-5000

12 Facsimile: (650) 857-0663

Email: gfondo@cooley.com

13

jsantamaria@cooley.com

hdnavarro@cooley.com

14

Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and

15 the Plaintiff Class

16 (Counsel continued on next page)

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19

20 SYLVIA DARENSBURG and VIVIAN Case No. C-05-1597

HAIN, individuals on behalf of themselves

21 and all others similarly situated;

AMALGAMATED TRANSIT UNION,

SECOND AMENDED COMPLAINT FOR

22 LOCAL 192; and COMMUNITIES FOR A INJUNCTIVE AND DECLARATORY

BETTER ENVIRONMENT,

RELIEF PURSUANT TO FOURTEENTH

23

AMENDMENT TO THE UNITED STATES

Plaintiffs,

CONSTITUTION, 42 U.S.C. § 1983, TITLE

24

VI OF THE CIVIL RIGHTS ACT OF 1964,

v.

42 U.S.C. § 2000d, ET SEQ., AND CAL.

25

GOV. CODE § 11135

METROPOLITAN TRANSPORTATION

26 COMMISSION,

[CLASS ACTION]

27

Defendant.

28
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Case 3:05-cv-01597-EDL Document 137 Filed 11/01/2007 Page 2 of 32

1 PETER D. NUSSBAUM (State Bar

No. 49682)

2 DANIEL T. PURTELL (State Bar No.

147905)

3 LINDA LYE (State Bar No. 215584)

ALTSHULER, BERZON, NUSSBAUM,

4 RUBIN &

DEMAIN

5 177 Post Street, Suite 300

San Francisco, CA 94108

6 Telephone: (415) 421-7151

Facsimile: (415) 362-8064

7 Email: pnussbaum@altshulerberzon.com

dpurtell@altshulerberzon.com

8

llye@altshulerberzon.com

9 Attorneys for Plaintiff Amalgamated Transit Union Local 192
10

11 RICHARD A. MARCANTONIO

(State Bar No. 139619)

12 GUILLERMO MAYER

(State Bar No. 235776)

13 ELISABETH VOIGT

(State Bar No. 234935)

14 ANGELICA K. JONGCO

(State Bar No. 244374)

15 PUBLIC ADVOCATES, INC.

131 Steuart Street, Suite 300

16 San Francisco, CA 94105

Telephone: (415) 431-7430

17 Facsimile: (415) 431-1048

Email: rmarcantonio@publicadvocates.org

18

gmayer@publicadvocates.org

evoigt@publicadvocates.org

19

ajongco@publicadvocates.org

20 Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Plaintiff Class
21

22

23

24

25

26

27

28

ADRIENNE BLOCH (State Bar No. 215471) COMMUNITIES FOR A BETTER ENVIRONMENT 1440 Broadway, Suite 701 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438 Email: abloch@cbecal.org Attorneys for Plaintiff Communities for a Better Environment
Kelly M. Dermody Daniel M. Hutchinson LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West 275 Battery Street, Suite 3000 San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008 Email: kdermody@lchb.com
dhutchinson@lchb.com Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Plaintiff Class
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1

INTRODUCTION

2

1. This action challenges a longstanding pattern of race discrimination by Defendant

3 Metropolitan Transportation Commission (“MTC”) in the funding of public transit services in the

4 San Francisco, California Bay Area. Plaintiffs Sylvia Darensburg and Vivian Hain, along with

5 many members of the organizational plaintiffs, Communities for a Better Environment (“CBE”)

6 and Amalgamated Transit Union, Local 192, are people of color who are riders of the Alameda-

7 Contra Costa Transit District (“AC Transit”), which operates California’s largest bus-only transit

8 system. Defendant MTC wields enormous control over transportation funding in the San

9 Francisco Bay Area and allocates, programs, or otherwise controls significant transit funding

10 sources to each of the Bay Area’s approximately twenty to thirty transit operators, including AC

11 Transit. Through its funding, planning, advocacy, and other decisionmaking policies and

12 practices, Defendant MTC has historically engaged, and continues to engage, in a policy, pattern

13 or practice of actions and omissions that have the purpose and effect of discriminating against

14 poor transit riders of color in favor of white, suburban transit users, on the basis of their race and

15 national origin.

16

2. AC Transit serves a ridership that is nearly 80% people of color. By contrast, the

17 Peninsula Corridor Joint Powers Board (“Caltrain”) and the Bay Area Rapid Transit District

18 (“BART”) were from their very inception intended to serve disproportionately white suburban

19 commuters. Caltrain and BART continue to have much higher percentages of white transit riders

20 than does AC Transit.

21

3. Over many years Defendant MTC has exercised and continues to exercise control

22 over transportation funding for the Bay Area in a manner that disproportionately benefits the

23 white riders of Caltrain and BART, at the expense of the disproportionately minority riders of AC

24 Transit. As a result of Defendant MTC’s discriminatory funding practices, AC Transit bus riders

25 receive a public subsidy of $2.78 per trip. By contrast, Caltrain riders receive $13.79, almost five

26 times that received by AC Transit patrons, and BART riders receive $6.14, more than double that

27 received by AC Transit riders.

28 ///

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1

4. One of MTC’s most significant responsibilities is the development and adoption of

2 the Regional Transportation Plan (“RTP”), a long-range planning document in which Defendant

3 MTC identifies the total pool of available transportation funding available over a twenty-five year

4 horizon, identifies the cost of operating and maintaining the region’s transportation system,

5 identifies MTC’s regional priorities, and decides how to allocate available funds to identified

6 costs. As a result of defendant MTC’s discriminatory funding policies and practices, AC Transit

7 has consistently received inadequate money to fund its operating budget, and has suffered a

8 structural, long-term deficit in its operating budget, reflected in a multimillion dollar “transit

9 operating shortfall” in each of MTC’s RTPs since 1994. By contrast, no operating shortfall is

10 reflected for BART in any of these RTPs, and none for Caltrain in three of the four. Since at least

11 as early as 1994, it has been MTC policy and practice to “cover” – that is, to fund – transit capital

12 shortfalls, benefiting riders of BART and Caltrain, but not to cover transit operating shortfalls,

13 thus hurting riders of AC Transit.

14

5. The funding disparities created by Defendant MTC, and defendant MTC’s creation

15 of and failure to cover AC Transit’s consistent operating shortfalls, have significant, adverse

16 effects on AC Transit riders of color, who, as a result, receive a lower quality and quantity of

17 transit service from that received by riders of Caltrain and BART. The RTP transit operating

18 shortfalls created by MTC cause AC Transit to cut service and increase fares, to the detriment of

19 AC Transit riders of color. As a result, at the same time that the level of rail service has

20 experienced a steady increase, the level of bus services available to riders of AC Transit has fallen

21 precipitously. And the quality of AC Transit service has deteriorated, while white suburban rail

22 commuters have enjoyed first-rate transit service. These funding disparities also adversely impact

23 the environment and public health and safety of low-income communities of color in Alameda

24 and Contra Costa Counties.

25

6. Defendant MTC’s funding preference for projects and programs that benefit

26 Caltrain and BART riders, but leave AC Transit riders behind, Defendant MTC’s creation of and

27 failure to cover transit operating shortfalls in its RTPs, and its policy and practice of funding

28 capital shortfalls but not operating shortfalls, are not justified by any transportation planning or

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1 business necessity. The Caltrain and BART projects and programs that Defendant MTC funds

2 and advocates for are vastly less cost-effective than the AC Transit projects and programs that

3 Defendant MTC consistently refuses to fund, or under-funds. Defendant MTC’s irrational

4 funding practices undermine the basic and commonly-accepted transportation planning principle

5 of using limited transportation funds in a cost-effective manner. Defendant MTC, moreover, has

6 the ability to allocate funds under its control to cover RTP shortfalls for both transit operations

7 and transit capital purposes. It does so for the enormous capital shortfalls experienced by Caltrain

8 and BART, but refuses to do so for AC Transit’s operating shortfalls.

9

7. Defendant MTC’s funding practices harm transit riders of color who depend on

10 AC Transit to get to work or school, and to meet their daily needs, such as shopping for food and

11 clothing, getting to the doctor, and taking children to day care. Those riders suffer significant

12 adverse effects on a daily basis from Defendant MTC’s funding practices. Plaintiffs file this class

13 action to bring a halt to Defendant MTC’s discriminatory practices and to ensure that minority

14 bus riders share equitably in the improvement of transit services that white suburban commuters

15 enjoy.

16

JURISDICTION

17

8. This action arises under the Fourteenth Amendment to the United States

18 Constitution, 42 U.S.C. §1983, Title VI of the Civil Rights Act of 1964, 42 U.S.C. §2000d, et

19 seq., and Cal. Gov. Code §11135. Jurisdiction is conferred on this Court pursuant to 28 U.S.C.

20 §§1331, 1343, and 1367.

21

9. Plaintiffs’ claims for declaratory and injunctive relief are authorized by 28 U.S.C.

22 §§2201, 2202, Federal Rules of Civil Procedure 57 and 65, and the general legal and equitable

23 powers of this Court.

24

VENUE

25

10. Venue is proper under 28 U.S.C. §1391(b) because a substantial part of the events

26 or omissions giving rise to the Plaintiffs’ claims occurred in this district.

27 /// 28 ///

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1

11. Pursuant to Local Rule 3-2(d), intra-district assignment to the San Francisco or

2 Oakland division is proper because the acts or omissions which give rise to this action occurred in

3 Oakland, California, where Defendant MTC is headquartered.

4

PLAINTIFFS

5

12. Plaintiff Sylvia Darensburg is a low-income African-American resident of East

6 Oakland, County of Alameda. She has three children. They all depend on AC Transit bus service

7 to meet their transportation needs. She and her family ride AC Transit buses to get to work,

8 school, college classes, medical appointments, grocery shopping, social services and volunteer

9 activities. She and her family have suffered the consequences of repeated bus service cuts and

10 fare increases. Cuts in bus service have reduced her employment opportunities, and often make

11 her tardy for work despite her best planning. Where she previously only needed to ride one bus

12 or two to get to necessary destinations, cuts in service now require that she ride two or three buses

13 in order to arrive at the same destinations. In the evening, when she returns from college classes,

14 Plaintiff Darensburg must now walk a long distance in an unsafe area because evening service on

15 the bus route closest to her home has been discontinued. Defendant discriminates against

16 Plaintiff Darensburg by denying her equal treatment in its funding, planning, advocacy, and other

17 decisionmaking policies and practices, including by providing her with lower transit subsidies

18 than white Caltrain and BART riders, and by creating and failing to cover shortfalls in the

19 operating budget of AC Transit, the transit system she uses. MTC’s discriminatory funding,

20 planning, advocacy, and other decisionmaking policies and practices deny Plaintiff Darensburg

21 equal transportation benefits, on the basis of her race.

22

13. Plaintiff Vivian Hain is a low-income Latina resident, formerly of East Oakland,

23 and now of Berkeley, County of Alameda. She has three children. Plaintiff Hain’s household

24 owns an old, polluting automobile, which is inoperable for one or more weeks in an average

25 month. During those periods, she and her family depend on AC Transit buses to get to school,

26 college classes, medical appointments, grocery shopping, social services and volunteer activities.

27 She and her family have suffered the consequences of repeated AC Transit bus service cuts. As a

28 result of those service cuts, Plaintiff Hain and her family members have encountered significant

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1 obstacles in traveling to a wide variety of destinations. Where previously Plaintiff Hain or her

2 family members only needed to ride one bus or two to get to necessary destinations, cuts in

3 service now require two or three bus trips in order to arrive at the same destinations. Plaintiff

4 Hain’s lack of access to a higher quality and quantity of transit service has impeded her ability to

5 complete her college course of study. Similarly, Plaintiff Hain’s daughter has difficulty getting to

6 the magnet school in which she is enrolled, which in turn interferes with her daughter’s right to

7 obtain a free, quality public education. Defendant discriminates against Plaintiff Hain by denying

8 her equal treatment in its funding, planning, advocacy, and other decisionmaking policies and

9 practices, including by providing her with lower transit subsidies than white Caltrain and BART

10 riders, and by creating and failing to cover shortfalls in the operating budget of AC Transit, the

11 transit system she uses. MTC’s discriminatory funding, planning, advocacy, and other

12 decisionmaking policies and practices deny Plaintiff Hain equal transportation benefits, on the

13 basis of her race and national origin.

14

14. Plaintiff Communities for a Better Environment (“CBE”) is a California

15 environmental health and justice non-profit organization that seeks to protect and enhance the

16 environment and public health. CBE has fought for cleaner air in the Bay Area for over twenty

17 years by, among other things, increasing and improving transit opportunities in the region. As an

18 environmental justice and health organization, CBE specifically addresses the effects of agency

19 decisions on environmental quality and the distribution of environmental burdens and benefits as

20 they specifically relate to low-income communities of color. CBE recognizes that resource

21 allocation and funding choices disproportionately impact these communities. As an

22 environmental justice organization, CBE seeks to ensure that residents of communities of color

23 have equitable access to healthcare, employment opportunities, and other important opportunities

24 and benefits such as transit services afforded to white communities.

25

15. CBE and another plaintiff organization brought successful litigation in 1989,

26 against, inter alia, MTC to enforce national standards for ozone and carbon monoxide to improve

27 air quality in the Bay Area. See Communities for a Better Environment, et al. v. Deukemejian, et

28 al. (No. C-89-2044-TEH) and Sierra Club, et al. v. Metropolitan Transportation Commission, et

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1 al. (No. C-89-2064-TEH), filed June 13, 1989. Among other things, MTC was forced to adopt

2 contingency transportation control measures to improve air quality. See id.

3

16. Nearly twelve years later, CBE and a coalition of environmental, environmental

4 justice and community groups brought suit against MTC to improve Bay Area transit ridership to

5 improve air quality, reduce public health problems caused by air pollution, offer those residents

6 with cars a choice to use transit instead, and afford those residents without vehicles a more viable

7 and affordable public transit system. See Bayview Hunters Point Community Advocates, et al. v.

8 MTC, et al. (No. C-01-0750 TEH) (“Bayview”), filed February 21, 2001. The suit sought to

9 compel MTC to implement a key 1982 transportation control measure that sought to ease the

10 region’s air pollution woes by requiring MTC and transit operators to achieve by 1987 a 15

11 percent increase in Bay Area transit ridership from 1983 levels. The goal was to improve the

12 viability of transit as an alternative to automobile use, in order to shift people from cars onto

13 public transit and thereby reduce motor vehicle emissions. Eighteen years later, the measure had

14 yet to be implemented, and the ridership increase had never been realized. Despite a 30 percent

15 increase in population, there were roughly the same number of people riding transit in 2001 as in

16 1983. While transit ridership in the region as a whole remained roughly at 1983 levels, ridership

17 on the inner city transit systems fared much worse. AC Transit in the East Bay lost

18 approximately eight million annual boardings between 1983 and 2001. In light of the relief

19 plaintiffs in the Bayview action sought, viz., to require MTC to achieve a 15 percent increase in

20 ridership over 1983 levels, a major area of litigation focused on MTC’s power to effect an

21 increase in transit ridership. This in turn required extensive litigation over the nature and extent

22 of MTC’s discretion to allocate available transportation funding for various purposes and the

23 relative cost-effectiveness of different transit projects.

24

17. CBE has members who are people of color who utilize AC Transit to serve their

25 transportation needs. CBE brings these claims in this action on behalf of itself and these

26 members, who would have standing to sue in their own right and whose personal participation in

27 this litigation is not necessary. Defendant discriminates against CBE’s people of color members

28 by denying them equal treatment in its funding, planning, advocacy, and other decisionmaking

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1 policies and practices, including by providing them with lower transit subsidies than white

2 Caltrain and BART riders, and by creating and failing to cover shortfalls in the operating budget

3 of AC Transit, the transit system they use. MTC’s discriminatory funding, planning, advocacy,

4 and other decisionmaking policies and practices deny members of Plaintiff CBE equal

5 transportation benefits, on the basis of their race and national origin. Non-discriminatory

6 funding would allow finite funds available for public transit to be used in a more cost-effective

7 manner and thus increase the quality and quantity of public transit service available, including,

8 among other things, increasing the quality and quantity of AC Transit service, especially in the

9 urban areas in which CBE’s members reside. Equitable funding would address disparities in the

10 distribution of environmental benefits, opportunities and access, and would increase the quality

11 and quantity of public transit service, reducing the localized impact on CBE’s members of vehicle

12 emissions, emissions which are at their highest when vehicles are started. Non-discriminatory

13 funding would thus further CBE’s institutional goals of protecting and enhancing the environment

14 and public health, and providing communities of color with equitable access to healthcare,

15 employment opportunities, and other important opportunities and benefits afforded to white

16 communities. CBE also has members who are deprived of adequate bus service due to

17 Defendant’s discriminatory funding practices; as a result, these members have no choice but to

18 drive the only cars they can afford—which are generally older and hence more polluting–thus

19 increasing the harm to the environment and public health.

20

18. Plaintiff CBE has already devoted resources to fighting transit discrimination in

21 the Bay Area. If MTC’s discriminatory funding practices continue, Plaintiff CBE will also have

22 to devote resources to combating the ill effects of these practices by, for example advocating on

23 behalf of transit riders of color who receive a lower quality and quantity of transit services than

24 white transit riders. Plaintiff CBE has limited institutional resources and if it did not have to

25 expend resources responding to MTC’s discriminatory funding policies and practices, it could and

26 would instead allocate these resources to other critical activities in furtherance of its mission of

27 advocating on behalf of communities of color.

28 ///

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1

19. Plaintiff Amalgamated Transit Union, Local 192 (“ATU 192”) is a labor

2 organization that represents employees who live and work in the Bay Area. The objects and

3 principles of ATU 192, as set forth in the Constitution and General Laws of its International

4 Union, include: “To engage in such legislative, political, educational, cultural, social, and welfare

5 activities as will further the interests and welfare of the membership of the organization.” ATU

6 192 therefore advocates on behalf of its members’ rights in the workplace and also in the

7 community at large. ATU 192 is committed to equality of opportunity and therefore works to

8 fight discrimination in all its forms. ATU 192 has members who are people of color who use AC

9 Transit to serve their transportation needs. ATU 192 brings this suit on behalf of itself and these

10 members, who would have standing to sue in their own right and whose personal participation in

11 this litigation is not necessary. Defendant MTC discriminates against ATU 192’s people of color

12 members by denying them equal treatment in its funding, planning, advocacy, and other

13 decisionmaking policies and practices, including by providing them with lower transit subsidies

14 than white Caltrain and BART riders, and by creating and failing to cover shortfalls in the

15 operating budget of AC Transit, the transit system they use. MTC’s discriminatory funding,

16 planning, advocacy, and other decisionmaking policies and practices deny members of Plaintiff

17 ATU 192 equal transportation benefits, on the basis of their race and national origin. An order

18 prohibiting Defendant from discriminating against ATU 192’s people of color members on the

19 basis of their race and national origin would further the interest and welfare of ATU 192’s

20 members by vindicating their right to be free from discrimination and providing them with equal

21 transit opportunities and benefits.

22

20. Plaintiff ATU 192 has already devoted resources to fighting transit discrimination

23 in the Bay Area. If MTC’s discriminatory funding practices continue, Plaintiff ATU 192 will also

24 have to devote resources to combating the ill effects of these practices by, for example advocating

25 on behalf of transit riders of color who receive a lower quality and quantity of transit services

26 than white transit riders. Plaintiff ATU 192 has limited institutional resources and if it did not

27 have to expend resources responding to MTC’s discriminatory funding policies and practices, it

28

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1 could and would instead allocate these resources to other critical activities in furtherance of its

2 mission of advocating on behalf of its members.

3

DEFENDANT

4

21. Defendant MTC is the transportation planning, financing and coordinating agency

5 for the Bay Area, which consists of the Counties of Alameda, Contra Costa, Marin, Napa, San

6 Mateo, Santa Clara, Solano, and Sonoma and the City and County of San Francisco.

7

22. Pursuant to state law, Defendant MTC is a local area planning agency, and not a

8 part of the executive branch of the state government. Cal. Gov. Code §66502.

9

23. Defendant MTC is the metropolitan planning organization and designated recipient

10 of federal transportation funds for the San Francisco Bay Area. 23 U.S.C. §134(b); 49 U.S.C.

11 §5303; 49 U.S.C. §5307(a)(2). Defendant MTC also receives tens of millions of dollars annually

12 in funds or financial assistance directly from the State of California by grant, contract, or

13 otherwise. It regularly employs five or more persons.

14

24. Defendant MTC makes funding decisions on a “continuous” basis. Cal. Gov.

15 Code §66513.

16

25. At all relevant times, Defendant MTC was acting and continues to act under color

17 of state law, within the meaning of 42 U.S.C. §1983.

18

CLASS ALLEGATIONS

19

26. Plaintiffs Darensburg and Hain bring this action pursuant to Rule 23 of the Federal

20 Rules of Civil Procedure on behalf of a class of all people of color who are current and potential

21 patrons of AC Transit.

22

27. The members of the class are sufficiently numerous that joinder of all members is

23 impracticable. AC Transit delivers approximately 250,000 passenger trips per day. Even if

24 individual bus riders take more than one trip per day, approximately 100,000 and potentially more

25 individuals ride AC Transit each day. And because nearly 80% of AC Transit’s riders are people

26 of color, plaintiffs are informed and believe that the class encompasses tens of thousands of

27 people of color who are current AC Transit patrons. When potential AC Transit patrons of color

28 are included, the number of class members increases further.

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1

28. There are questions of law and fact common to the class and these questions

2 predominate over individual questions. Such questions include, among others: (1) whether

3 Defendant MTC’s funding, planning, advocacy, and other decisionmaking policies and practices

4 have a disparate impact on the class; (2) whether any disparate impact is justified by a

5 transportation planning necessity or a less discriminatory alternative exists; (3) whether the

6 disparate impact constitutes a violation of California Government Code § 11135; (4) whether

7 Defendant MTC has purposefully discriminated against the class; (5) whether any purposeful

8 discrimination violates the Equal Protection Clause of the Constitution; (6) whether any

9 purposeful discrimination violates Title VI of the 1964 Civil Rights Act; and (7) whether

10 injunctive relief and other equitable remedies are warranted for the class.

11

29. The claims alleged by Plaintiffs Darensburg and Hain are typical of the claims of

12 the class.

13

30. Plaintiffs Darensburg and Hain will fairly and adequately represent the interests of

14 the class.

15

31. Class certification is appropriate pursuant to Fed. R. Civ. P. 23 (b)(2) because

16 Defendant MTC has acted and/or refused to act on grounds generally applicable to the class,

17 making declaratory and injunctive relief appropriate with respect to Plaintiffs Darensburg and

18 Hain and the class as a whole. The members of the class are entitled to injunctive relief to end

19 Defendant MTC’s common, uniform, and unfair discriminatory policies and practices.

20

FACTUAL ALLEGATIONS

21

32. A majority of the riders of AC Transit, Caltrain and BART, taken together, are

22 people of color. However, the passengers of California’s largest bus-only operator, AC Transit,

23 are disproportionately people of color, while the passengers of the two major essentially rail-only

24 operators, Caltrain and BART, are disproportionately white. The disparity in the racial make-up

25 of the ridership of these three operators is statistically significant.

26

33. Defendant MTC is aware that BART and Caltrain have historically served

27 disproportionately white riders. For instance, according to a 1977 study that Defendant MTC

28 itself commissioned, BART’s “radial suburbs-to-downtown design” does not serve the “local-

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1 travel, blue-collar employment, and inner-city travel needs of minorities.” The study found that

2 “BART was designed primarily to carry long-distance suburban commuters (who are

3 predominantly white) to downtown San Francisco and Oakland . . . . BART has not made a

4 noticeable impact upon the mobility of ethnic minority residents. In particular, it has had very

5 limited impact upon the mobility of low-income central city minorities.” In its summary of the

6 BART studies it commissioned in the 1970s, Defendant MTC wrote, “BART planning objectives

7 did not place special emphasis on service to minorities . . . .”

8

34. For the same reasons, Caltrain – which like BART was designed primarily to carry

9 long-distance suburban commuters – serves a population that is predominantly white and

10 suburban. In fact, long before Caltrain took over operation of the Peninsula commuter lines from

11 the state and a private company in 1992, the predecessor service was recognized, in another study

12 commissioned by Defendant MTC, as “provid[ing] very poor service to transit dependents,” a

13 term defined by the authors of the study as “minority, elderly, handicapped or low income”

14 persons.

15

35. Caltrain and BART continue to serve a disproportionately white ridership. While

16 whites make up 35% of the collective ridership of AC Transit, Caltrain and BART, they account

17 for 60% of Caltrain riders and 43% of BART riders. And while African Americans have a

18 collective ridership on these three operators of 22%, they account for only 4% of Caltrain riders

19 and only 14% of BART riders. While 65% of transit riders on these three transit systems are

20 people of color, AC Transit, with a ridership that is nearly 80% people of color, serves a

21 disproportionately high percentage of people of color. While African Americans account for only

22 22% of all riders on these three transit systems, they account for more than one-and-a-half times

23 that percentage, 37%, of AC Transit’s riders.

24

36. Caltrain and BART riders are also wealthier than AC Transit riders. Only 13% of

25 Caltrain riders have yearly household incomes below $30,000. Over half (52%) of all Caltrain

26 riders have annual household incomes above $75,000, and more than one third (35%) report

27 annual household incomes over $100,000. Only 25% of BART’s riders have annual household

28 incomes of less than $30,000. In contrast, AC Transit’s riders are predominantly low-income:

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1 57% have annual household incomes below $30,000 and 72% qualify as either extremely low

2 income (up to 30% of the area median income) or very low income (31 to 50% of the area median

3 income).

4

37. Sixty-one percent of adult AC Transit riders rely entirely on public transit for their

5 everyday transportation needs. By contrast, only 14% of Caltrain riders and only 22% of BART

6 riders are transit dependent.

7

38. Defendant MTC exerts substantial control over funding the capital and operating

8 budgets of each of the transit operators within its jurisdiction, including Caltrain, BART, and AC

9 Transit, determining the amount of money that flows to each transit operator as well as the

10 purposes for which such funds may be used. In exercising this substantial control over the

11 budgets of transit operators, Defendant MTC discriminates against projects and programs that

12 benefit the disproportionately minority ridership of AC Transit in favor of projects and programs

13 that benefit the disproportionately white riders of Caltrain and BART, on the basis of these riders’

14 race and national origin.

15

39. In its roles as regional transportation planning agency, federal metropolitan

16 planning organization, and designated recipient of federal transportation funds, Defendant MTC

17 is responsible for the planning, programming, and allocation of a variety of federal, state, and

18 local transportation funds, totaling over $1 billion each year, to the 20 to 30 transit operators

19 within its jurisdiction, including AC Transit, Caltrain and BART. “Programming” refers to

20 Defendant MTC’s assigning the planned use of a fund source to a project or activity.

21

40. One of MTC’s most significant responsibilities is the adoption of its Regional

22 Transportation Plan (“RTP”). Cal. Gov. Code §§ 65080, 66509-13; 23 U.S.C. § 134 (f)-(g); 49

23 U.S.C. §§ 5303. The RTP sets forth the region’s long-range plan for transportation development,

24 based on projected available financial resources. 49 U.S.C. §5303(f). The Plan is a long-range

25 planning document in which Defendant MTC identifies the total pool of available transportation

26 funding available over a twenty-five year horizon and decides how to allocate those funds.

27

41. New transportation projects in the region generally cannot be implemented without

28 MTC’s approval: This is so because new projects must be reviewed and approved by MTC for

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1 inclusion in the RTP in order to be eligible for virtually any state or federal funding. Cal. Gov.

2 Code §66520; 49 U.S.C. § 5309(d). Defendant MTC establishes the policies, priorities and

3 criteria that govern the selection of projects for funding and inclusion in the RTP.

4

42. Defendant MTC acts as an advocate, asking state and federal legislatures and

5 administrative agencies to allocate funding for specific transit projects, or to specify particular

6 allocation rules. For instance, when the new federal reauthorization bill, known as SAFETEA-

7 LU (Pub. L. 109-59), was being developed in Congress, Defendant MTC successfully advocated

8 a change in the law that would provide for allocating funds in the Jobs Access and Reverse

9 Commute (“JARC”) funding program on a formula basis, despite its awareness that distribution

10 of JARC funds on a formula basis would, and in fact does, reduce funding available to AC Transit

11 by several million dollars a year. Defendant MTC sometimes also acts as the sponsor for funding

12 from these and other sources for specific transit projects. Often, the specific projects for which

13 Defendant MTC advocates cannot receive funding without Defendant MTC’s action or support.

14

43. Defendant MTC has broad control over the amount and use of AC Transit’s

15 operating funds, both directly and indirectly.

16

44. Defendant MTC, by its own account, exercises direct control over at least 40% of

17 AC Transit’s budget. Defendant MTC attaches conditions to the funds that it does grant to AC

18 Transit, designating the purpose(s) for which such funds may be used. In this way, Defendant

19 MTC directly controls how AC Transit spends certain funds that it receives from Defendant

20 MTC. Defendant MTC also exercises direct control over AC Transit’s budget by determining the

21 overall size of that budget: Defendant MTC has the power to and has in the past decided to deny

22 or delay AC Transit funding, and Defendant MTC has failed to take steps within its power to

23 provide AC Transit with additional funds, including operating funds. Such actions reduce the

24 overall size of AC Transit’s budget.

25

45. Indirectly, Defendant MTC controls significantly more of AC Transit’s budget,

26 Defendant MTC exercises substantial indirect control over AC Transit’s operating budget in

27 numerous respects. For instance, decisions by Defendant MTC affect other funding streams,

28 including those over which MTC might not exercise direct control. Thus, MTC has the authority

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1 to allow transit operators to use certain funds normally available for capital purposes for

2 “preventive maintenance” (otherwise considered an operating cost); such flexibility frees up

3 scarce operating funds for other purposes. Defendant MTC also reduces the overall size of AC

4 Transit’s budget by, inter alia, choosing not to allocate to AC Transit funds within MTC’s control

5 and choosing to lobby for funding for projects that benefit riders of Caltrain or BART, to the

6 exclusion of projects that benefit AC Transit riders. Defendant MTC further indirectly controls

7 AC Transit’s expenditure of scarce operating funds when it attaches conditions to the funds that it

8 does allocate to AC Transit. For instance, MTC has granted AC Transit funds subject to the

9 condition that AC Transit “match” those funds with other funds that AC Transit could have used

10 to provide greater service or lower fares to Plaintiffs, thus restricting AC Transit’s independence

11 to allocate funds over which it exerts nominal control. Defendant MTC imposes such conditions

12 on AC Transit’s funding more often than it does on funding for any other transit system,

13 particularly Caltrain or BART.

14

46. As part of its responsibility to create the RTP, MTC requires each Bay Area transit

15 operator to prepare a ten-year plan called a Short Range Transit Plan (“SRTP”). Based on its

16 funding policies and practices, MTC issues an estimate of the revenues each operator can expect

17 to receive over a ten-year period. MTC requires each operator to adopt a fiscally constrained ten-

18 year SRTP budget projection using MTC’s revenue estimate. MTC then uses the operator’s

19 balanced-budget projection in the SRTP as the starting point for the 25-year financial plan of

20 MTC’s RTP. MTC’s funding policies and practices consistently leave AC Transit with a long-

21 term operating shortfall in MTC’s RTPs. Moreover, MTC fails to cover that operating shortfall.

22 In adopting its RTP, MTC assigns certain funding sources (including federal CMAQ and STP

23 funds) to “cover” certain identified shortfalls, in whole or in part. Although MTC has the

24 authority to use those funds to cover transit operating shortfalls, it has a practice and policy of not

25 doing so.

26

47. AC Transit has reduced the quality and quantity of service that had previously

27 been available to Plaintiffs and/or implemented fare increases that injured Plaintiffs because of

28 MTC’s funding, planning, and advocacy, and decisionmaking policies and practices, including

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1 decisions to deprive AC Transit of operating funds and/or flexibility and to create and not cover

2 shortfalls in AC Transit’s operating budget. Conversely, the amount of service that AC Transit

3 provides to Plaintiffs Darensburg and Hain, and the members of Plaintiffs ATU 192 and CBE

4 (hereinafter collectively “Plaintiffs”) and members of the Plaintiff Class would increase if

5 Defendant MTC provided AC Transit with additional operating funds and flexibility. In

6 overseeing and allocating transportation funds for the Bay Area, Defendant MTC determines the

7 amount of money that flows to each of these transit operators for new capital projects and existing

8 programs, including operations and maintenance of these systems. It also decides which of

9 several permissible uses of the funds that it distributes or “programs” will be allowable ones in

10 the Bay Area. By way of example, Defendant MTC is responsible for the decision to curtail AC

11 Transit’s ability to make flexible use of federal “formula” funds to cover preventive maintenance

12 costs, an allowable use of those funds under federal law. Despite Defendant MTC’s knowledge

13 of the importance of having preventive maintenance funding available to sustain AC Transit

14 service, Defendant MTC has recently adopted a policy which restricts the availability of such

15 funding to two years out of the next twelve. This decision has the effect of injuring Plaintiffs

16 Darensburg and Hain, and members of Plaintiffs ATU 192 and CBE, and members of the Plaintiff

17 Class by, inter alia, forcing AC Transit to divert scarce operating funds to use for preventive

18 maintenance, thereby necessarily reducing the amount of operating funds available to AC Transit

19 to provide service for Plaintiffs and members of the Plaintiff Class. Through the power of the

20 purse strings, Defendant MTC decides which transit needs, among those of the Bay Area’s

21 diverse communities, will be met and, if so, the quantity and quality of service; conversely, it

22 decides which transit opportunities Plaintiffs and members of the Plaintiff Class will be denied,

23 by virtue of denying funding to AC Transit, in whole or in part, for those opportunities. It also

24 attaches conditions to the allocation and/or release of essential funds, conditions that dictate the

25 transit opportunities that AC Transit may provide, or that make it less feasible or infeasible for

26 AC Transit to provide needed transit opportunities to Plaintiffs and members of the Plaintiff

27 Class. Defendant MTC also monitors the budgets of the transit operators within its jurisdiction,

28 and evaluates their service and overall performance.

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1

48. By virtue of its roles as regional transportation planning agency and metropolitan

2 planning organization for the Bay Area, Defendant MTC exercises significant influence, through

3 its advocacy efforts or lack thereof, before the state and federal governments, over the

4 transportation projects and programs that are selected to receive funding from state and federal

5 sources and the level at which these projects and programs are funded. Thus, even where state or

6 federal legislation earmarks transportation funds, rather than granting Defendant MTC discretion

7 to allocate the funds, Defendant MTC is often responsible for, or is the active advocate behind,

8 the allocation set forth in the legislation. Even when opportunities have arisen for Defendant

9 MTC to support changes in state or federal law that would provide funding benefits to AC Transit

10 passengers, Defendant MTC has either been hostile to such changes or has declined to play more

11 than a perfunctory role in attempting to secure the changes.

12

49. Defendant MTC systematically discriminates against low-income people of color

13 in the selection of transit projects, with an explicit two-tiered approach to transit projects that

14 benefit minority passengers and white passengers, fully funding the latter, but leaving an

15 unfunded shortfall of several billion for the former. For the latter, Defendant MTC has selected

16 costly and cost-ineffective transit (mostly rail) expansion projects, and has committed to fund

17 them fully in its 2001 Regional Transit Expansion Plan. For the former, by contrast, MTC

18 created the Lifeline Transportation Program, stating that this program was “intended to work in

19 tandem with [the] new Regional Transit Expansion Program, to ensure that all population groups

20 benefit from an improved and expanded transit system for their work and non work trip needs.”

21 Yet Defendant MTC has failed to select projects to meet even these minimum “lifeline” transit

22 needs, much less to commit to fund those projects fully. Its 2005 RTP seeks only $216 million in

23 new revenues over twenty-five years to address mobility needs for residents of low-income

24 communities of color – a shortfall of well over a billion dollars.

25

50. In the case of most public transit operators, including AC Transit, Caltrain and

26 BART, the fare paid by a passenger does not support the actual cost of the trip that the passenger

27 takes. “Subsidy per passenger trip” is the most appropriate way to measure subsidization of

28 public transit systems. This figure is calculated from data contained in the National Transit

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1 Database, which is maintained by the Federal Transit Administration. By exercising its

2 significant discretion over the region’s transportation purse strings, Defendant MTC plays a

3 determinative role in the amount of the subsidy per passenger trip received by the riders on each

4 of the region’s public transit operators. The subsidy per passenger trip received by a transit

5 operator has a determinative effect on the quantity and quality of service available to the riders of

6 that operator.

7

51. Between 1989 and 2003, the most recent year for which data is publicly available,

8 AC Transit riders, who are disproportionately people of color, each received an average subsidy

9 per passenger trip of approximately one-fifth that received by Caltrain riders and less than half

10 that received by BART riders. The greater the white ridership of the transit operator, the greater

11 the subsidy per passenger trip. Conversely, the more the ridership is composed of people of

12 color, including African Americans, the smaller the subsidy per passenger trip.

13

52. Although Defendant MTC has long known that its funding policies have an

14 adverse impact on poor, transit dependent AC Transit riders of color, it has consistently refused

15 and continues to refuse to implement recommendations that would mitigate the harmful effects of

16 its funding decisions or to refrain from engaging in actions that exacerbate such effects. For

17 example, in 2001 a group of 39 African-American ministers wrote to Defendant MTC seeking

18 equity in the per passenger funding between AC Transit and local rail services. The ministers

19 pointed out that Defendant MTC ranked a bus project that could be provided by AC Transit in the

20 Richmond area of western Contra Costa County, with a population that is 69% minority, as the

21 most cost-effective project considered in Defendant MTC’s Regional Transportation Plan,

22 adopted in 2001. Nevertheless, Defendant MTC devoted almost half of the funds it refers to as

23 “discretionary” funds committed to transit in its 2001 Regional Transportation Plan ($2.3 billion

24 out of $4.8 billion) to the least cost-effective projects, two rail projects – one for Caltrain and the

25 other for BART – both designed to serve disproportionately white, suburban populations, and

26 chose not to fund the extraordinarily cost-effective bus project for which the Richmond ministers

27 had advocated. Because MTC rejected the proposal for the AC Transit Richmond bus project,

28 AC Transit was unable to obtain the funding that it needed in order to provide this service, thus

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1 depriving Plaintiffs and the members of the Plaintiff Class of the benefits of greater mobility that

2 the project would have afforded them. A recent example of MTC’s inequitable distribution of

3 discretionary funds occurred in the Spring of 2005. In adopting the 2004 Transportation

4 Improvement Plan (“TIP”), MTC did not distribute its full allocation of federal funds under two

5 programs, known as the CMAQ and STP programs. After adopting the federally-mandated TIP,

6 and with no prior public process or public input of any kind, MTC staff proposed allocating an

7 additional $105.5 million in CMAQ and STP funds. Of the $22.5 million in funds that staff

8 proposed to allocate to transit operators, $6.9 million was directed to BART and $9.28 million to

9 Caltrain. MTC proposed to allocate none of this $105 million to AC Transit, despite the fact that

10 AC Transit has projects that could have been funded under the “strategic expansion” category, to

11 which MTC proposes to allocate $55 million. MTC’s failure to allocate a share of these funds to

12 AC Transit left AC Transit unable to provide new services that would have benefited Plaintiffs

13 and members of the Plaintiff Class.

14

53. If Defendant MTC refrained from engaging in its discriminatory funding,

15 planning, advocacy, and other decisionmaking policies and practices, it could instead, but has

16 repeatedly declined to, support and fund projects and programs that improve transit for transit

17 dependent and inner-city / urban dwellers, which are an effective means of improving air quality

18 by removing some of the most polluting vehicles from the road and by substantially reducing auto

19 vehicle miles traveled. Defendant MTC could also support and fund projects and programs that

20 would provide low-income transit riders of color with bus shelters, greater security, night routes,

21 seating during peak and non-peak hours, and greater access to doctors and hospitals; Defendant

22 MTC has the power to specifically place conditions on funds to ensure that the money it provides

23 to a transit operator such as AC Transit would actually go to these purposes. Because Defendant

24 MTC has engaged, and continues to engage, in its discriminatory funding, planning, advocacy,

25 and other decisionmaking policies practices, AC Transit has repeatedly been unable to implement

26 projects and programs that would have improved transit opportunities for Plaintiffs and Plaintiff

27 Class members, and AC Transit has repeatedly been forced to reduce services that had previously

28 been available to Plaintiffs and Plaintiff Class members, or to implement fare increases that injure

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1 Plaintiffs and Plaintiff Class members, or a combination of the two. The discriminatory funding,

2 planning, advocacy, and other decisionmaking policies and practices of Defendant MTC have

3 repeatedly forced AC Transit to increase the fares Plaintiffs and Plaintiff Class members pay for

4 bus service. Those fare increases have outpaced the rate of inflation, and have outpaced the rate

5 of increase of fares paid by riders of Caltrain and BART. Plaintiffs and many members of the

6 Plaintiff Class are non-discretionary transit riders with low incomes who have no alternative but

7 to rely on AC Transit bus service. Accordingly, Plaintiffs suffer significant economic injury

8 when fares increase as a result of Defendant MTC’s discriminatory practices.

9

54. If Defendant MTC ceased its discriminatory funding, planning, advocacy, and

10 other decisionmaking policies and practices the result would be greater funding for AC Transit,

11 much or all of which AC Transit would use to provide improved transportation opportunities for

12 Plaintiffs and members of the Plaintiff Class. AC Transit has formally adopted a plan (known as

13 its “Strategic Vision”) to provide a truly world-class local transit system for its riders, including

14 Plaintiffs and Plaintiff Class members, and is thus committed to implementing this plan if

15 Defendant MTC allocates it sufficient funding to do so. Pursuant to its plan, AC Transit intends

16 to make overall service improvements, including providing fast, frequent, reliable service on a

17 wide variety of routes with attractive vehicles and an easy-to-use fare structure at affordable

18 levels. Phase One of that plan would provide “comprehensive enhancements throughout the [AC

19 Transit] system,” including “capital and operating improvements” on the ten busiest East Bay

20 corridors. Of the ten bus routes slated for these enhancements, none is a Transbay route. Nine of

21 those ten routes serve Oakland, where Plaintiff Darensburg lives. One of those ten routes serves

22 Richmond. The plan also contemplates a free bus pass for low-income students, including the

23 children of Plaintiffs. This local service, including essential service to get children to school, is to

24 be supplemented by a comprehensive combination of bus services. These overall improvements

25 in AC Transit’s service and fare structure will inure to the benefit of each and every AC Transit

26 rider, including Plaintiffs and Plaintiff Class members, regardless of which route individual riders

27 use on any given day, because each rider’s mobility depends on the efficacy of the entire network

28 of AC Transit service and the affordability of fares.

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1

55. None of the routes that AC Transit’s Strategic Vision targets for enhancement are

2 Transbay routes. In any event, nearly half of AC Transit’s Transbay routes “serv[e]

3 predominantly minority census tracts,” according to AC Transit’s 2000 Title VI report. In

4 addition, many of AC Transit’s Transbay routes also serve communities that lack ready access to

5 BART and/or provide local service before they cross the bay.

6

56. If Defendant MTC ceased its discriminatory funding, planning, advocacy, and

7 other decisionmaking policies and practices, AC Transit would provide improved services and/or

8 reduced fares that would directly benefit Plaintiffs and other minority riders of AC Transit’s core

9 local service. A small proportion of all trips on AC Transit are Transbay trips. AC Transit has

10 procedures in place by which it ensures its compliance with Title VI of the federal Civil Rights

11 Act before it changes the service it provides or the fares it charges; in particular, AC Transit has

12 procedures by which it ensures that all such proposed changes will benefit minority riders to at

13 least the same extent as other riders, and will not burden minority riders more than other riders.

14 Moreover, if there were any doubt that AC Transit might not expend additional funding from

15 Defendant MTC in a manner that benefited minority riders, Defendant MTC is empowered to

16 ensure that minority riders benefit by attaching conditions to additional funding it provides to AC

17 Transit; Defendant MTC has not been reluctant to impose conditions on AC Transit's funding in

18 the past.

19

57. Defendant MTC’s discriminatory funding, planning, advocacy, and other

20 decisionmaking policies and practices have prevented and continue to prevent AC Transit from

21 implementing some or all of the transit improvements that AC Transit has planned to implement

22 that would benefit Plaintiffs and the Plaintiff Class. The Strategic Vision policy clearly states that

23 AC Transit will implement its plan to the extent that it receives the additional funds through

24 Defendant MTC that are needed to implement and operate the plan, benefiting Plaintiff and

25 members of the Plaintiff Class with greater mobility, economic and other benefits. Conversely, to

26 the extent that it does not receive the additional funds through Defendant MTC that are needed to

27 implement its plan, AC Transit will be unable to do so, and Plaintiffs and members of the Plaintiff

28 Class will not receive these benefits. Indeed, AC Transit’s financial projections indicate that, if it

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1 does not receive additional funds from Defendant MTC, the service that AC Transit is able to

2 provide to Plaintiffs and members of the Plaintiff Class will decline further.

3

58. If Defendant MTC ceased its discriminatory funding, planning, advocacy, and

4 other decisionmaking policies and practices, a further result would be to equalize the subsidy per

5 passenger trip received by Plaintiffs and Plaintiff Class members, and by the disproportionately

6 white riders of Caltrain and BART.

7

59. While Defendant MTC is required by federal law to include the public in its

8 transportation planning process, including the process of making crucial funding decisions,

9 Defendant MTC pays little if any heed to public input, suggestions, or constructive criticism

10 designed to mitigate the harm of its funding practices on Plaintiffs, Plaintiff Class members, and

11 low-income communities of color. In this, and other ways, Defendant MTC departs from

12 procedural transportation planning norms.

13

60. Defendant MTC also consistently departs from and indeed undermines substantive

14 transportation planning norms. It is a central guiding principle of long-range transportation

15 planning that transportation projects should provide the greatest transportation benefits for the

16 greatest number of people, in other words, they should be cost effective. Because achieving cost

17 effectiveness is a transportation planning norm, an exceedingly important method used by

18 transportation planners in determining which of several potential capital projects to fund is to

19 compare each proposed project’s cost per new rider. Data regarding the cost per new rider of

20 potential capital projects consistently demonstrates that proposed expansions of and

21 improvements to existing bus service are much more cost-effective than proposed expansions of

22 and improvements to rail service. Defendant MTC nevertheless consistently channels scarce

23 transportation funds to cost-ineffective rail expansion projects that benefit the disproportionately

24 white riders of Caltrain and BART riders at the expense of Plaintiffs and Plaintiff Class members.

25

61. For example, in the 2001 Regional Transportation Plan, the potential package of

26 new bus projects considered as a whole by Defendant MTC was 750% more productive in

27 converting transit funds into new riders than the list of new rail projects. In the “Blueprint” for

28 the Regional Transportation Plan, 19 of the 20 most cost-effective projects that Defendant MTC

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1 evaluated were bus projects. Despite the greater cost-effectiveness of these bus projects,

2 Defendant MTC chose to fund cost-ineffective rail projects and deny funds to cost-effective bus

3 projects. The Regional Transportation Plan’s extension of BART to San Jose had a projected cost

4 per new rider of as much as $100, while the electrification of Caltrain and its extension to

5 downtown San Francisco were projected to cost as much as $26 per new rider. The total

6 estimated cost of the BART extension was over $4 billion and the estimated cost of the Caltrain

7 project was approximately $1.5 billion. While approving these enormously expensive rail

8 projects, Defendant MTC refused to fund a project for bus riders in the poor, largely African-

9 American Richmond area in Western Contra Costa County that would have cost merely $0.75 per

10 new rider, for a total estimated project cost of only $700,000. At about the same time, Defendant

11 MTC refused to adequately fund a pilot project designed to ensure that low-income middle-and-

12 high school students in the AC Transit service area (the vast majority of whom are persons of

13 color) could receive free bus passes so that they could regularly access school, work, and other

14 essential activities.

15

62. Bus programs also operate more cost-effectively than rail programs. By

16 channeling disproportionate sums of available capital funds to cost-ineffective rail projects, which

17 have alternative fund sources for which they are eligible, Defendant MTC creates an ever-

18 expanding rail system with, by MTC’s own admission, unsustainable and ever-increasing needs

19 for operating and capital subsidies. This practice not only limits the pool of funds available to

20 improve bus service through new projects, but it also starves the existing bus system by draining

21 the limited pool of funds available for allocation to bus programs for operations, maintenance,

22 capital, and related purposes. This has the determinative effect of (1) reducing AC Transit’s

23 ability to implement planned service improvements that would benefit Plaintiffs and the members

24 of the Plaintiff Class, and/or (2) forcing AC Transit to reduce services that had previously been

25 available to Plaintiffs and members of the Plaintiff Class, or to implement fare increases that

26 injure them, or a combination of the two.

27

63. State and federal statutes and regulations require MTC to include in its RTP a

28 financial plan. MTC has at all relevant times been required in the financial plan of its RTP (a) to

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1 compare the estimated revenue from existing and proposed funding sources that can reasonably

2 be expected to be available for transportation uses, including public transit, with the estimated

3 costs of maintaining and operating the existing public transit system over the horizon of the RTP;

4 (b) to identify any shortfalls; and (c) to identify proposed new revenues and/or revenue sources to

5 cover shortfalls, including strategies for ensuring their availability for proposed investments; and

6 (d) to ensure that existing and proposed revenues shall cover all forecasted capital, operating, and

7 maintenance costs. MTC departs from these transportation planning norms to the detriment of

8 AC Transit riders by failing to cover the transit operating shortfalls affecting AC Transit service

9 that MTC has identified.

10

64. Defendant MTC continues to engage in these and other discriminatory funding

11 policies and practices, even though it knows they are discriminatory.

12

65. Defendant MTC ostensibly employs both subjective and objective funding criteria

13 in deciding how to allocate funds to, and in advocating for state and federal moneys for, the

14 projects and programs that benefit riders of the region’s transit operators. Its funding decisions

15 nevertheless reflect a subjective policy, pattern or practice of preferring projects and programs

16 that discriminatorily benefit the disproportionately white riders of Caltrain and BART riders over

17 those that benefit Plaintiffs and Plaintiff Class members for funding.

18 This policy, pattern or practice of discriminatory advocacy, planning and funding includes, but is

19 not limited to, the following: (1) Defendant MTC establishes funding criteria that favor projects

20 and programs that benefit rail riders over bus riders; (2) Defendant MTC applies its own funding

21 criteria and financial controls over transit operators inconsistently, to the disadvantage of AC

22 Transit riders; (3) Defendant MTC declines to allocate or program discretionary funds for the

23 benefit of AC Transit riders in a manner comparable to its allocation or programming of

24 discretionary funds for the benefit of Caltrain and BART riders; (4) Defendant MTC advocates

25 with state and federal legislatures more aggressively on behalf of Caltrain and BART riders than

26 AC Transit riders, for example, by giving Caltrain and BART projects a higher priority than AC

27 Transit projects, requesting more money for projects and programs that benefit Caltrain and

28 BART riders than AC Transit riders, and advocating for funds to be committed by law to projects

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1 and programs that benefit Caltrain and BART riders, but not advocating at all, or with comparable

2 vigor, for similar earmarking of funds for projects and programs that benefit AC Transit riders;

3 (5) Defendant MTC consistently creates a structural, long-term deficit in AC Transit’s operating

4 budget, reflected in a recurring multimillion dollar “transit operating shortfall” in each of MTC’s

5 RTPs since 1994, but rarely if ever creates similar structural, long-term deficit shortfalls in the

6 operating budgets of BART and Caltrain; and (6) Defendant MTC covers transit capital

7 shortfalls, primarily benefiting riders of BART and Caltrain, but fails to cover AC Transit’s

8 operating shortfalls, harming riders of AC Transit.

9

66. Plaintiffs allege in the alternative and on information and belief that Defendant

10 MTC’s policy, pattern or practice of discriminatory funding is not separable for purposes of

11 analysis.

12

67. Pursuant to Defendant MTC’s pattern or practice of discriminatory funding,

13 Defendant MTC has exercised and continues to exercise control over transportation funding for

14 the Bay Area in a manner that channels more money to support projects and programs that benefit

15 the disproportionately white riders of Caltrain and BART than to projects and programs that

16 benefit the disproportionately minority riders of AC Transit. MTC intentionally engages in its

17 policy, pattern, or practice of favoring projects and programs that benefit the disproportionately

18 white riders of Caltrain and BART at the expense of projects and programs that benefit the

19 disproportionately minority riders of AC Transit because of the race and national origin of

20 Plaintiffs and Plaintiff Class members. Defendant MTC for instance fails to provide equal

21 treatment to projects and programs for “transit dependent” riders and AC Transit riders, treating

22 these classifications of riders as code words for riders of color.

23

68. MTC’s discriminatory funding, planning, advocacy, and other decisionmaking

24 policies and practices are a substantial and determinative factor in creating the subsidy disparity

25 discussed above. That subsidy disparity harms Plaintiffs and Plaintiff Class members. Defendant

26 MTC is aware of the subsidy disparity caused by its funding policies and practices and the

27 continuing harms that it causes to Plaintiffs and Plaintiff Class members. MTC’s discriminatory

28 funding, planning, advocacy, and other decisionmaking practices, including MTC’s creation of,

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Case 3:05-cv-01597-EDL Document 137 Filed 11/01/2007 Page 27 of 32

1 and failure to cover, AC Transit’s long-term operating shortfalls, are a substantial and

2 determinative factor in causing cuts to AC Transit service, as RTP transit operating shortfalls

3 translate directly into service cuts and fare increases for riders of AC Transit.

4

69. Defendant MTC’s funding, planning, advocacy, and other decisionmaking policies

5 and practices are also a substantial and determinative factor in denying equal transit opportunities

6 and benefits to Plaintiffs and Plaintiff Class members, and in imposing economic harm on them,

7 including fare increases. For example, due to Defendant’s funding practices, Plaintiffs and

8 Plaintiff Class members receive a quality and quantity of service that is inferior to that received

9 by Caltrain and BART riders. Historically, while Caltrain and BART riders have enjoyed

10 increasing service, Plaintiffs and Plaintiff Class members have suffered service cuts, including

11 cuts to critical evening and night-time service which for many provides their only means for

12 commuting to and from work and getting to and from other essential destinations. These service

13 cuts were caused by Defendant MTC’s funding practices, which had a determinative and coercive

14 effect in forcing AC Transit to discontinue service for which MTC did not provide sufficient

15 funding, or to increase fares, or both.

16

70. Moreover, service reductions fall harder on Plaintiffs and Plaintiff Class members

17 than on Caltrain and BART riders. A majority (61%) of AC Transit riders are transit-dependent

18 (compared to only 22% of BART riders and 14% of Caltrain riders) and thus have no alternative

19 means of getting to work, school, and other essential locations. Diminished transit services thus

20 inflict other injuries on Plaintiffs and Plaintiff Class members, such as lost job opportunities, and

21 diminished access to education and health care.

22

71. Plaintiffs and Plaintiff Class members also experience an inferior quality of transit

23 service and fewer amenities than Caltrain or BART riders in ways that are not easily quantified.

24 For example, bus service is less reliable and generally less frequent, waiting conditions are less

25 safe, convenient, and pleasant for Plaintiffs and Plaintiff Class members than Caltrain or BART

26 riders. Plaintiffs and Plaintiff Class members also ride dirtier vehicles and feel less personally

27 secure while waiting for service than Caltrain or BART riders. If Defendant MTC did not engage

28 in its discriminatory funding, planning, advocacy, and other decisionmaking policies and

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Case 3:05-cv-01597-EDL Document 137 Filed 11/01/2007 Page 28 of 32

1 practices, it would provide AC Transit with greater funding, and AC Transit would improve and

2 mitigate these inferior conditions, as set forth in AC Transit’s Strategic Vision, thereby benefiting

3 Plaintiffs and members of the Plaintiff Class. Defendant MTC’s discriminatory practices,

4 however, make it impossible for AC Transit to do so by denying AC Transit the money it needs to

5 improve and mitigate these inferior conditions.

6

72. Furthermore, MTC’s refusal to extend equal treatment to Plaintiffs and Plaintiff

7 Class members on the basis of their race and national origin in its funding and decisionmaking

8 processes and practices, and the subsidy disparity resulting from Defendant’s discriminatory

9 policy, pattern or practice of discriminatory funding, constitute harms to Plaintiffs and Plaintiff

10 Class members in themselves. For instance, Defendant’s unequal treatment of Plaintiffs and

11 Plaintiff Class members on the basis of their race sends the message that, in the eyes of the

12 government, they are not equal participants in the community and are worth less than their white

13 counterparts on Caltrain and BART. Moreover, the subsidy per passenger trip constitutes an

14 economic benefit conferred by the government on Plaintiffs and Plaintiff Class members, much in

15 the way food stamps, a free public education, or any other public subsidies constitute an

16 economic benefit, and the fact that Plaintiffs and Plaintiff Class members receive a lower subsidy

17 per passenger trip than the disproportionately white passengers of Caltrain and BART injures

18 Plaintiffs and Plaintiff Class members economically.

19

73. Defendant MTC itself, as discussed above, has documented that both Caltrain and

20 BART were originally planned and designed to serve disproportionately white suburban

21 communities, rather than urban and inner city areas in which disproportionate numbers of people

22 of color reside, and has done nothing to bring about equity for the latter.

23

FIRST CAUSE OF ACTION

24

(Fourteenth Amendment and 42 U.S.C. §1983 - Equal Protection)

25

74. Plaintiffs incorporate paragraphs 1 to 73 by reference.

26

75. Defendant MTC’s prior, current, and on-going policies, patterns, practices,

27 procedures and/or customs of funding, advocacy and other decisionmaking in regard to

28 transportation projects and services on AC Transit, Caltrain and BART deprive Plaintiffs and

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Case 3:05-cv-01597-EDL Document 137 Filed 11/01/2007 Page 29 of 32

1 Plaintiff Class members of their rights under the Equal Protection Clause of the Fourteenth

2 Amendment to the United States Constitution and 42 U.S.C. §1983 because they have the purpose

3 of discriminating against transit riders on the basis of race and national origin.

4

76. As a direct and proximate result of Defendant MTC’s unlawful conduct, Plaintiffs

5 and Plaintiff Class members have suffered irreparable harm and this harm will continue absent

6 injunctive relief.

7

SECOND CAUSE OF ACTION

8

(Title VI and 42 U.S.C. §1983 - Purposeful Discrimination)

9

77. Plaintiffs incorporate paragraphs 1 to 76 by reference.

10

78. Defendant’s prior, current, and on-going policies, patterns, practices, procedures

11 and/or customs of funding, advocacy and other decisionmaking in regard to transportation

12 projects and services on AC Transit, Caltrain and BART deprive Plaintiffs and Plaintiff Class

13 Members of their rights under Section 601 of Title VI of the Civil Rights Act of 1964, 42 U.S.C.

14 §2000d, et seq. and 42 U.S.C. §1983 because they have the purpose of discriminating against

15 transit riders on the basis of race and national origin. Defendant receives federal funds.

16

79. As a direct and proximate result of Defendant MTC’s unlawful conduct, Plaintiffs

17 and Plaintiff Class members have suffered irreparable harm and this harm will continue absent

18 injunctive relief.

19

THIRD CAUSE OF ACTION

20

(Cal. Gov. Code §11135 - Purposeful and Disparate Impact Discrimination)

21

80. Plaintiffs incorporate paragraphs 1 to 79 by reference.

22

81. Defendant’s prior, current and on-going policies, patterns, practices, procedures

23 and/or customs of funding transportation projects and programs on AC Transit, Caltrain and

24 BART has the purpose and effect of discriminating against transit riders on the basis of race,

25 national origin, and ethnic group identification. Defendant unlawfully denies Plaintiffs and

26 Plaintiff Class members the full and equal access to the benefits of the public transit system in the

27 Bay Area. Defendant is funded directly by the State of California. Defendant receives financial

28

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Case 3:05-cv-01597-EDL Document 137 Filed 11/01/2007 Page 30 of 32

1 assistance from the State of California. Accordingly, Defendant has violated and continues to

2 violate Cal. Gov. Code §11135 and regulations promulgated thereunder.

3

82. As a direct and proximate result of Defendant MTC’s unlawful conduct, Plaintiffs

4 and Plaintiff Class members have suffered irreparable harm and this harm will continue absent

5 injunctive relief.

6

PRAYER FOR RELIEF

7

WHEREFORE, Plaintiffs ask this Court:

8

1. to certify the case as a class action on behalf of the proposed Plaintiff Class and to

9 designate Plaintiffs Darensburg and Hain as representatives of the class and their counsel of

10 record as Class Counsel;

11

2. to declare that Defendant MTC has violated the Equal Protection Clause of the

12 Fourteenth Amendment through its prior, current and on-going discriminatory policies, practices,

13 procedures and/or customs of funding transportation projects and services that benefit AC Transit,

14 Caltrain, and BART passengers;

15

3. to declare that Defendant MTC has violated Title VI of the Civil Rights Act

16 through its prior, current and on-going discriminatory policies, practices, procedures and/or

17 customs of funding transportation projects and services that benefit AC Transit, Caltrain, and

18 BART passengers;

19

4. to declare that Defendant MTC has violated Cal. Gov. Code §11135 through its

20 prior, current and on-going discriminatory policies, practices, procedures and/or customs of

21 funding transportation projects and services that benefit AC Transit, Caltrain, and BART

22 passengers;

23

5. to permanently enjoin Defendant MTC from making any funding decision that has

24 an unjustified disproportionately adverse impact on AC Transit riders of color, including

25 decisions that cause (a) AC Transit to experience an unfunded transit operating shortfall while not

26 causing operating shortfalls that affect BART or Caltrain, or while funding capital shortfalls that

27 disproportionately benefit BART or Caltrain, (b) an inequitable subsidy per passenger trip for AC

28 Transit passengers as compared to Caltrain or BART passengers, and/or (c) an inequitable

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Case 3:05-cv-01597-EDL Document 137 Filed 11/01/2007 Page 31 of 32

1 quantity and quality of service for AC Transit passengers as compared to Caltrain or BART

2 passengers;

3

6. to permanently enjoin Defendant MTC from supporting the funding of or funding

4 any improvement or expansion in service that detracts from the equitable funding of services that

5 benefit AC Transit riders;

6

7. to award Plaintiffs their reasonable attorneys’ fees, costs, and expenses, pursuant

7 to 42 U.S.C. §1988, Cal. Code Civ. Proc. §1021.5, and other applicable law; and

8

8. to grant such other and further relief as this Court should find just and proper.

9 Dated: November 1, 2007
10
11

LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.

12

By:

/s/ Bill Lann Lee

Bill Lann Lee 13

Bill Lann Lee

14

Margaret E. Hasselman

LEWIS, FEINBERG, LEE, RENAKER & JACKSON,

15

P.C.

1330 Broadway, Suite 1800

16

Oakland, CA 94612

Telephone: (510) 839-6824

17

Facsimile: (510) 839-7839

18

Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain,

and the Proposed Class; and Communities for a Better

19

Environment

20

Grant P. Fondo

21

Jessica Valenzuela Santamaria

Heather Dunn Navarro

22

COOLEY GODWARD KRONISH LLP

5 Palo Alto Square

23

3000 El Camino Real

Palo Alto, CA 94306

24

Telephone: (650) 843-5000

Facsimile: (650) 857-0663 25

Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain,

26

and the Proposed Class

27

28

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Case 3:05-cv-01597-EDL Document 137 Filed 11/01/2007 Page 32 of 32

1

Peter D. Nussbaum

Daniel T. Purtell

2

Linda Lye

ALTSHULER, BERZON, NUSSBAUM, RUBIN &

3

DEMAIN

177 Post Street, Suite 300

4

San Francisco, CA 94108

Telephone: (415) 421-7151

5

Facsimile: (415) 362-8064

6

Attorneys for Plaintiff Amalgamated Transit

Union Local 192

7

8

Richard A. Marcantonio

Guillermo Mayer

9

Elisabeth Voigt

Angelica K. Jongco

10

PUBLIC ADVOCATES, INC.

131 Steuart Street, Suite 300

11

San Francisco, CA 94105

Telephone: (415) 431-7430

12

Facsimile: (415) 431-1048

13

Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain,

and the Proposed Class

14

Adrienne Bloch

15

COMMUNITIES FOR A BETTER ENVIRONMENT

1440 Broadway

16

Oakland, CA 94612

Telephone: (510) 302-0430

17

Facsimile: (510) 302-0438

18

Attorneys for Plaintiff Communities for a Better

Environment

19

Kelly M. Dermody

20

Daniel M. Hutchinson

LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP

21

Embarcadero Center West

275 Battery Street, Suite 3000

22

San Francisco, CA 94111-3339

Telephone: (415) 956-1000

23

Facsimile: (415) 956-1008

24

Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain,

and the Plaintiff Class

25

26

27

28

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SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF CASE NO. C-05-1597

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

 SYLVIA DARENSBURG; VIVIAN HAIN,

on behalf of themselves and others

similarly situated; AMALGAMATED

TRANSIT UNION, LOCAL 192;

COMMUNITIES FOR A BETTER

ENVIRONMENT,

No. 09-15878

Plaintiffs-Appellants,

and

 D.C. No. 3:05-cv-01597-EDL

VIRGINIA MARTINEZ,

Plaintiff,

OPINION

v.

METROPOLITAN TRANSPORTATION COMMISSION,
 Defendant-Appellee.

Appeal from the United States District Court for the Northern District of California
Elizabeth D. Laporte, Magistrate Judge, Presiding
Argued and Submitted January 14, 2011—San Francisco, California
Filed February 16, 2011
Before: J. Clifford Wallace, John T. Noonan, and Barry G. Silverman, Circuit Judges.
Opinion by Judge Silverman; Concurrence by Judge Noonan

2553

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DARENSBURG v. MTC

COUNSEL
Linda Lye (argued), Peter D. Nussbaum, P. Casey Pitts, and Daniel Purtell of Altschuler Berzon LLP, San Francisco, California; Bill Lann Lee, Margaret Hasselman, Angelica Kristen Jongco, and Sacha C. Steinberger of Lewis Feinberg Lee Renaker & Jackson, PC, Oakland, California; Matthew Brigham, Heather Dunn Navarro, Brandon Kimura, Neha M. Marathe, and Jessica Valenzuela Santamaria, Cooley LLP; Richard A. Marcantonio, Jr. and Guillermo Mayer of Public Advocates, Inc., San Francisco, California; and Adrienne Bloch of Communities for a Better Environment, Oakland, California, for appellants.
Kimon Manolius (argued), Julia H. Veit, Warren Richmond Webster, Megan O. Thompson, and Emily M. Charley of Hanson Bridgett LLP, San Francisco, California; Francis F. Chin, Cynthia E. Segal of Metropolitan Transportation Commission, Oakland, California, for appellees.

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DARENSBURG v. MTC OPINION

2557

SILVERMAN, Circuit Judge:

Plaintiffs-appellants, a class of members of racial minority groups who ride buses operated by the Alameda-Contra Costa Transit District (“AC Transit”), a labor union, and a community-based organization appeal from the district court’s judgment in favor of the Metropolitan Transportation Commission. Claiming state and federal civil rights violations, Plaintiffs allege that MTC’s disproportionate emphasis on rail expansion projects over bus expansion projects in its Regional Transit Expansion Plan, also known as the RTEP, illegally discriminates against minorities, who constitute 66.3% of San Francisco Bay Area bus riders — even though 51.6% of rail riders are also members of racial minority groups.

Plaintiffs claim that the RTEP has a disparate impact on minorities, and that this disparate impact, along with evidence of (1) the history of Bay Area rail service as predominantly benefitting white riders; (2) MTC’s interactions with its advisory committees representing minority groups; and (3) MTC’s inconsistent application of selection criteria to bus and rail projects, demonstrates that MTC’s decision to favor rail over bus expansion in the RTEP results from intentional discrimination.

The district court granted summary judgment in favor of MTC on Plaintiffs’ intentional discrimination claims, but allowed the disparate impact claims to continue to trial. After trial, the district court held that Plaintiffs had established a prima facie case of disparate impact discrimination only as to MTC’s conduct in disproportionately selecting and allocating funding to rail projects, as opposed to bus projects, in the RTEP. However, shifting the burden to MTC, the district court held that MTC had shown “substantial legitimate justification” for its challenged conduct. Shifting the burden back to Plaintiffs to prove the existence of a less discriminatory,

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equally effective alternative, the district court held that they had failed to do so.

We agree that Plaintiffs’ disparate impact claim fails, but for a different reason. The statistical measure upon which Plaintiffs relied to establish a prima facie case is unsound, and their claim rests upon a logical fallacy. Although Plaintiffs’ statistical evidence shows that minorities make up a greater percentage of the regional population of bus riders than rail riders, it does not necessarily follow that an expansion plan that emphasizes rail projects over bus projects will harm minorities. Plaintiffs’ theory forecloses altogether the possibility that MTC could devise any rail-centered expansion that could benefit minority transit riders, while the evidence shows that Bay Area minorities already benefit substantially from rail service. Without a more precise statistical measure of how the particular projects included in the RTEP will serve the Bay Area’s transit ridership, no court could possibly determine whether MTC’s long-term expansion plan will help or harm the region’s minority transit riders.

Because Plaintiffs do not establish a prima facie case of disparate impact, MTC is not required to justify its challenged conduct, and we do not address the district court’s analysis on that point.

Plaintiffs’ failure to provide an appropriate measure of disparate impact also fatally undermines their claim of intentional discrimination. Not only does Plaintiffs’ statistical evidence fail to prove discrimination, but their circumstantial evidence does not support any inference that MTC’s adoption of the Regional Transit Expansion Plan was motivated by racial bias.

We affirm the judgment of the district court.

FACTUAL BACKGROUND

The facts of this case are set forth in exquisite detail by the district court in its decision, see Darensburg v. Metro. Transp.

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DARENSBURG v. MTC

2559

Comm’n, 611 F. Supp. 2d 994 (N.D. Cal. 2009); therefore, we repeat only those facts pertinent to the issues we address in detail.

I. Parties

MTC is the transportation planning, coordinating and financing agency for the nine-county San Francisco Bay Area. MTC is the designated recipient of numerous federal and state funding sources, and is responsible for allocating those funding sources that are within its control to various transit operators and projects. MTC sets policy and makes funding decisions through its nineteen-member Board of Commissioners.

There are twenty-six independent transit operators within MTC’s purview. The operators are independent from MTC and make their own decisions about budgeting and policy, including what services to provide. The operators are funded in part with state and federal money allocated through MTC; however, operators also receive a substantial part of their funding from state and local revenue sources, such as local sales taxes, that are outside of MTC’s control.

Plaintiffs rely on AC Transit bus service for transportation to and from work, school, shopping, and family and social engagements, among other destinations. Plaintiffs allege they have been harmed by cuts in AC Transit’s bus service, fare hikes, failure to make improvements that would make buses more accessible and service more reliable, and failure to increase the reach and frequency of bus service. As a result, Plaintiffs claim to have lost out on job opportunities; been forced to cut expenses for other necessities to accommodate fare hikes; used more expensive means of transportation, including cars and taxis, to work around service shortages; and been subject to long waits for buses in unsafe areas.

Plaintiffs assert that MTC’s decisions not to select more and allocate greater funding for bus expansion projects in its

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Regional Transit Expansion Plan has caused, at least in part, the fare hikes, service shortages, and lack of improvement on AC Transit bus service of which Plaintiffs complain.

II. Transit Operators and Regional Ridership Demographics

Seven operators account for over ninety-five percent of the Bay Area’s transit trips. The annual ridership of these seven operators for fiscal-year 2005-06 was approximately as follows: (1) San Francisco Municipal Railway (“MUNI”) (220.880 million riders); (2) Bay Area Rapid Transit (“BART”) (101.578 million riders); (3) AC Transit (65.383 million riders); (4) Santa Clara Valey Transit Authority (“VTA”) (40.187 million riders); (5) San Mateo County Transit District (“SamTrans”) (40.187 million riders); (6) Peninsula Corridor Joint Powers Board (“CalTrain”) (10.149 million riders); and (7) Golden Gate Highway and Transporation District (“GGT”) (9.403 million riders). The percentage of minority ridership on these operators is as follows: (1) AC Transit (78%); (2) VTA (70%); (3) SamTrans (70%); (4) MUNI (58%); (5) BART (53%); (6) Caltrain (50%); (7) GGT (38%). Minorities account for approximately 61 percent of the Bay Area’s total transit ridership, 66.3 percent of bus ridership, and 51.6 percent of rail ridership.

These operators provide different and interconnecting modes of service. AC Transit and SamTrans provide only bus service. BART and Caltrain provide only rail service. MUNI and VTA provide a mix of bus and rail services. GGT provides a mix of bus and ferry services. AC Transit connects with nine other bus systems, twenty-one BART stations, six Amtrak stations, and three ferry terminals. BART operates five routes to forty-three stations in four counties, including areas served by AC Transit. Caltrain operates train service in San Francisco, San Mateo, and Santa Clara counties, and is run by a consortium of three other operators (MUNI, SamTrans, and VTA).

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DARENSBURG v. MTC

2561

III. The Development of the Regional Transit Expansion Plan

MTC is responsible for updating roughly every four years the Regional Transportation Plan, a comprehensive blueprint for the development of mass transit, highway, airport, seaport, railroad, bicycle and pedestrian facilities. A key portion of the Regional Transportation Plan is the Regional Transit Expansion Plan, a long-range plan to address regional mass transit needs.

Plaintiffs challenge MTC’s selection of projects for inclusion into the Regional Transit Expansion Plan, arguing that MTC favors rail expansion projects over bus expansion projects, and that this preference discriminates against bus riders who are disproportionately minority compared to rail riders. The RTEP at issue here was first adopted in 2001, and then amended and updated in 2006. Although the actionable conduct at issue arises from the 2006 amendment, most of the relevant background arises from the development and adoption of the 2001 RTEP.

A. Federal Guidelines for Regional Transit Planning

As the federally designated transit planning agency for the Bay Area,1 MTC is mandated to “provide for consideration of projects and strategies that” serve a variety of goals, including (1) supporting regional “economic vitality”; (2) increasing “the safety and security of the transportation system”; (3) increasing “accessibility and mobility of people and for freight”; (4) supporting environmental protection, energy conservation, and planned growth and economic development patterns; (5) “enhanc[ing] the integration and connectivity of the transportation system, across and between modes, for peo-

1MTC functions as both the regional transportation planning agency — a state designation — and, for federal purposes, as the region’s metropolitan planning organization.

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ple and freight”; (6) “promot[ing] efficient system management and operation”; and (7) “emphasiz[ing] the preservation of the existing transportation system.” 23 U.S.C § 134(h)(1).

The federal transportation agencies have also made equity issues an important consideration in regional transportation planning. In April 1997, the Department of Transportation issued Order 5680.1,2 requiring the Federal Transit Administration and Federal Highway Administration to consider human health and environmental effects related to transit projects that may have a “disproportionately high and adverse effect on minority and low-income populations.” The order also requires the establishment of procedures “to provide meaningful opportunities for public involvement by members [of these populations] during the planning and development of programs, policies, and activities (including the identification of potential effects, alternatives, and mitigation measures).” 62 FR 18379.

B. Criteria for Evaluating Projects to Be Incorporated Into the RTEP

In April 2001, MTC adopted Resolution 3357, a set of financial and performance criteria under which projects proposed for the Regional Transit Expansion Plan would be evaluated. Resolution 3357 identified two primary concerns undergirding the RTEP: “[1] improving mobility in the Bay Area’s most congested travel corridors; and [2] providing additional transit options for commuter travel.” Resolution 3357 provided different but “roughly equivalent” criteria under which rail expansion and bus expansion projects were solicited and evaluated. These criteria included whether a project (1) had prior federal, state, and local financial commitments; (2) could be sustainably operated and maintained by

2Dep’t of Transp. Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, 62 FR 18378-79 (April 15, 1997).

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DARENSBURG v. MTC

2563

its operator(s) once built; (3) served high density areas; (4) was cost-effective; (5) increased the connectivity of the existing transit system; (6) could be easily accessed by transit users; and (7) was ready to be implemented.

MTC received proposals for fourteen rail projects and four bus projects. The rail projects included five BART projects, three Caltrain projects, and six others, with a total capital cost of $10.071 billion. The four bus projects had an overall capital cost of $1.468 billion, including three AC Transit proposals with a total capital cost of $1.28 billion. The three proposals for which AC Transit requested funds were: (1) Oakland-San Leandro Bus Rapid Transit, Phase 1 ($104 million); (2) Oakland-San Leandro Bus Rapid Transit, Phase 2 ($270 million); and (3) Enhanced Bus/Rapid Transit, Miscellaneous Corridors project, which included eight service corridors ($906 million).

C. Projects Included in the RTEP

On December 19, 2001, MTC adopted the Regional Transit Expansion Plan as Resolution 3434. The RTEP included nineteen projects with a total projected capital cost of $10.519 billion. The projects included all five proposed BART projects with a total capital cost of $5.266 billion, three Caltrain projects with a total capital cost of $1.059 billion, and two AC Transit projects with a total capital cost of $241 million. AC Transit’s request for $270 million for its Oakland-San Leandro Bus Rapid Transit, Phase 2 project was excluded altogether. AC Transit’s request for $906 million for its Miscellaneous Corridors service was reduced to $90 million, and scaled back to only three of the proposed eight service corridors. However, the largest BART expansion project — the more than $3 billion Warm Springs to San Jose extension — was in fact sponsored by VTA; the Transbay Terminal project, containing bus and rail elements, was sponsored by a joint powers board of which AC Transit was a member along with MUNI, GGT, and SamTrans; and the Caltrain projects

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were sponsored by a joint powers board that included SamTrans, VTA, and MUNI.

In 2006, the RTEP was amended and updated to include twenty projects with a total project cost of $13.503 billion. Funding for all five BART expansions was increased. One of three Caltrain projects was completed, and funding was reduced for the other two. AC Transit’s Miscellaneous Corridors service was scaled back from three corridors to one, and the funding cut from $90 million to $68 million. Funding for AC Transit’s Oakland-San Leandro Bus Rapid Transit, Phase 1 project was increased from $151 million to $175 million.

PROCEDURAL BACKGROUND

Plaintiffs filed their class action complaint on April 19, 2005, alleging intentional discrimination claims under the Equal Protection Clause and 42 U.S.C. § 2000d et seq. (Title VI of the Civil Rights Act of 1964), and state law claims for intentional and disparate impact discrimination under California Government Code § 11135. The parties stipulated to class certification.

The essence of Plaintiffs’ complaint is that MTC’s faciallyneutral funding decisions disproportionately favor investment in rail service over bus service so as to adversely impact Bay Area minorities who make up a larger percentage of regional bus ridership than rail ridership. Plaintiffs argued that MTC’s funding practices have both the effect and intent of discriminating against minorities.

Both Plaintiffs and MTC filed motions for summary judgment. Plaintiffs filed a motion for summary adjudication as to their prima facie case of their disparate impact discrimination under California Government Code section 11135. MTC filed a motion for summary judgment as to all of Plaintiffs’ claims, and challenged the standing of both the individual and organization Plaintiffs. The district court granted summary judgment

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in favor of MTC as to Plaintiffs’ intentional discrimination claims, and denied all other motions.

Plaintiffs’ state law disparate impact discrimination claims proceeded to a bench trial. The district court found that Plaintiffs had stated a prima case of disparate impact discrimination, but also found that MTC had met its rebuttal burden of showing by a preponderance of the evidence that there was a “substantial legitimate justification” for its challenged conduct, thus shifting the burden back to Plaintiffs to articulate an equally effective, less discriminatory alternative. The district court found that Plaintiffs had failed to do so. This appeal followed.

STANDARD OF REVIEW

The district court’s grant of summary judgment is reviewed de novo. See Narayan v. EGL, Inc., 616 F.3d 895, 899 (9th Cir. 2010). We “must view the evidence ‘in the light most favorable’ to [Plaintiffs] to determine if there was no genuine issue as to any material fact and whether the defendants were entitled to judgment as a matter of law.” Crowe v. County of San Diego, 608 F.3d 406, 427 (9th Cir. 2010) (quoting Miller v. Auker, 576 F.3d 979, 991 (9th Cir. 2009)). We review the district court’s findings of fact for clear error, while “questions of law and mixed questions of fact and law are reviewed de novo, unless the mixed question is primary factual.” See N.B. v. Hellgate Elem. Sch. Dist., ex rel. Bd. of Dirs., Missoula County, Mont., 541 F.3d 1202, 1207 (9th Cir. 2008).

DISCUSSION

I. Disparate Impact

California Government Code section 11135 prohibits discrimination “under[ ] any program or activity that . . . receives any financial assistance from the state.” Title VI is identical in prohibiting discrimination, but applies to programs spon-

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sored with federal funds. 42 U.S.C. § 2000d. In light of the parallel language of state and federal law, federal law provides important guidance in analyzing state disparate impact claims. See City & County of San Francisco v. Fair Employment & Housing Comm’n, 236 Cal. Rptr. 716, 721-22 (Cal. Ct. App. 1987). Thus, the state burden-shifting framework for analyzing disparate impact cases parallels the federal one: (1) a plaintiff establishes a prima facie case if the defendant’s facially neutral practice causes a disproportionate adverse impact on a protected class; (2) to rebut, the defendant must justify the challenged practice; and (3) if the defendant meets its rebuttal burden, the plaintiff may still prevail by establishing a less discriminatory alternative. Id. at 721. We look to Title VII disparate impact analysis in analyzing Title VI claims. Larry P. by Lucille P. v. Riles, 793 F.2d 969, 982 & n.9 (9th Cir. 1984).

A. The Percentage of Minorities Among the San Francisco Bay Area’s Bus and Rail Ridership Is Not a Proper Measure for Assessing the Impact of the Challenged Conduct on Minorities.

“[T]o make out a prima facie case of disparate impact . . . plaintiffs [must] employ an ‘appropriate measure’ for assessing disparate impact.” N.Y. City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 69 (2d Cir. 2000) (citing N.Y. Urban League v. State of N.Y., 71 F.3d 1031, 1038 (2d Cir. 1995)). A district court may not find the existence of disparate impact “on the sole basis of [a statistic] unless it reasonably [finds] that [the statistic] would be a reliable indicator of a disparate impact.” N.Y. Urban League, 71 F.3d at 1038 (2d Cir. 1995). “[C]ourts [and] defendants [are not] obliged to assume that plaintiffs’ statistical evidence is reliable.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 996 (1988).

As to Plaintiffs’ disparate impact claim, the district court, after trial, held that MTC’s selection process for RTEP projects “causes a disparity in funding for rail projects that on the

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whole are used by a lower percentage of minority riders, as opposed to bus projects.” The district court’s determination was based on the fact that 66.3 percent of bus riders are members of racial minority groups as opposed to only 51.6 percent of rail riders. The district court never expressly found that MTC’s funding of rail over bus adversely affected San Francisco Bay Area minorities; however, a finding that Plaintiffs established a prima facie case of disparate impact demonstrates that the district court must have drawn that inference. Our court reviews a district court’s inferences for clear error. Inwood Labs, Inc. v. Ives Labs., Inc., 456 U.S. 844, 856 n.16 (1982).

[1] “The basis for a successful disparate impact claim involves a comparison between two groups — those affected and those unaffected by the facially neutral policy.” Tsombanidis v. W. Haven Fire Dep’t, 352 F.3d 565, 575 (2d Cir. 2003). An appropriate statistical measure must therefore take into account the correct population base and its racial makeup. See Robinson v. Adams, 847 F.2d 1315, 1318 (9th Cir. 1987). In Smith v. Xerox Corp., plaintiffs sued Xerox under Title VII after a number of workers were laid off, asserting that the company’s layoff criteria caused a disparate impact on older and male employees. 196 F.3d 358, 367 (2d Cir. 1999), overruled on other grounds by Meacham v. Knolls Atomic Power Lab., 461 F.3d 134 (2d Cir. 2006). Instead of analyzing the effects of the layoffs on these groups as a whole, however, the “plaintiffs’ expert either isolated units or pooled various units and ran separate analyses for each of these work-groups.” Id. at 368-69. The Second Circuit held that such an analysis was insufficient to establish a prima facie case of disparate impact because

In any large population a subset can be chosen that will make it appear as though the complained of practice produced a disparate impact. Yet, when the entire group is analyzed any observed differential may disappear, indicating that the identified employ-

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ment practice was not the cause of the disparity observed in the subset.

Id. at 369.

[2] Here, Plaintiffs would have us analyze the impact of MTC’s Regional Transit Expansion Plan on the minority population of AC Transit users or on minority bus riders. But MTC’s RTEP does not affect solely bus riders or solely AC Transit riders — it affects an entire integrated transit system’s users. Thus, we must analyze the impact of the plan on minorities in the population base “affected . . . by the facially neutral policy.” Tsombanidis, 352 F.3d at 575; see also Robinson, 847 F.2d at 1318 (no prima facie case of disparate impact where wrong base population used in statistical sample); Hallmark Developers, Inc. v. Fulton County, Ga., 466 F.3d 1276, 1286 (11th Cir. 2006) (“[T]he appropriate inquiry is into the impact on the total group to which a policy or decision applies”) (citing Betsey v. Turtle Creek Assocs., 736 F.2d 983, 987 (4th Cir. 1984)).

[3] From the facts before us, it is impossible to say with any confidence that San Francisco Bay Area minorities are adversely affected by the RTEP. The district court erred by relying on a faulty syllogism: (1) a greater percentage of bus riders than rail riders are minorities; (2) fewer bus expansion projects than rail expansion projects were included in the RTEP, and bus projects received a lesser percentage of requested funding than did rail projects; (3) therefore, minorities were adversely affected. The fault lies in the reliance on the overall regional ridership statistics for existing bus and rail service. What is key is that these statistics say nothing about the particular ridership of the planned expansions. Simply because minorities represent a greater majority of bus riders as opposed to rail riders, the rejection of a particular new bus expansion project in favor of a new rail expansion project will not necessarily work to the detriment of minorities. It is a real possibility that a particular bus project supported by AC

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Transit — Transbay service, for example — will serve a largely white ridership. On the other hand, a rail expansion project — the BART project connecting the East Bay to San Jose, or the MUNI central subway project connecting Bayview and Chinatown, for example — may benefit minority riders more than white riders by serving areas with high concentrations of minorities, and integrating them more fully into the regional rail system. In fact, although AC Transit’s ridership may have a higher percentage of minorities, BART annually carries over two million more minority riders than AC Transit. It is entirely plausible that an RTEP with a heavy emphasis on rail could significantly benefit Bay Area minorities. However, a court simply could not determine from Plaintiffs’ statistical evidence whether the projects in the RTEP will benefit or harm the Bay Area’s minority transit riders.3

In Robinson, the plaintiff filed a disparate impact claim against Orange County for its alleged discriminatory hiring practices, contending that “he established a prima facie case of discriminatory impact by citing statistics which allegedly show that the percentage of Blacks in Orange County and in surrounding counties is higher than the percentage of Blacks employed by Orange County.” 847 F.2d at 1318. We rejected the plaintiff’s claim, however, holding that he “fail[ed] to establish that these general population statistics represent a pool of prospective applicants qualified for the jobs for which he applied. We have consistently rejected the usefulness of

3Further evidence that Plaintiffs have failed to provide an appropriate statistical measure of discrimination is that a vast majority of the rail projects that Plaintiffs challenge as discriminatory are sponsored by transit operators with a high percentage of minority ridership. MTC’s expansion projects that are sponsored, at least in part, by transit operators with at least seventy percent minorities account for approximately $9 billion of the $13.5 billion of projected RTEP costs. There is no evidence to suggest that these operators are sponsoring projects to the detriment of their constituents. If Plaintiffs believe that these sponsoring decisions are made to the detriment of these operators’ minority constituencies, then their dispute is with the operators, not with MTC.

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general population statistics as a proxy for the pool of poten-
tial applicants where the employer sought applicants for positions requiring special skills.” Id.4

Plaintiffs’ regional-level population statistics fail to explain with any precision the effect the Regional Transit Expansion Plan will have on minority transit users. Under Plaintiffs’ theory, so long as the population of bus riders contains a greater percentage of minorities than the population of rail riders, any RTEP that emphasizes rail expansion over bus expansion, even where such a plan may confer a far greater benefit upon minorities than whites, would be subject to legal challenge. Indeed, MTC could be effectively prevented from any efforts to expand rail service to accommodate more minority riders out of fear that they could be sued for discriminating against precisely the groups that they seek to integrate into the regional transit system.

There are few available cases factually similar to this one; however, Bean v. Southwestern Waste Management Corp., 482 F. Supp. 673 (S.D. Tex. 1979), is one example and illustrates the importance of providing an appropriately precise statistical measure of disparate impact. In Bean, the plaintiffs challenged Texas’s decision to place a waste management facility in their neighborhood, arguing that its placement was motivated by racial discrimination. Id. at 674-75. The district court denied the plaintiffs’ motion for a preliminary injunction for failing to establish any statistical evidence of discrimination. The Bean plaintiffs divided the city into four quadrants and argued that the data showed that Texas dispro-

4Although Plaintiffs have cited Committee Concerning Community Improvement v. City of Modesto (CCCI), 583 F.3d 690, 702 (9th Cir. 2009), for the proposition that the use of generic bus- and rail-rider statistics was appropriate, CCCI does not support their argument. In CCCI, neighborhood-level data was correctly used for neighborhood-level policies. Id. at 703-04. CCCI did not address the issue raised here of using pre-defined generic statistics to measure the impact of a policy affecting a different population.

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portionately placed waste treatment facilities in the minorityquadrants. Id. at 678. However, when the district court viewed where the waste management facilities were placed from the perspective of more precise census tract data, it found that their placements actually favored minorities, and that plaintiffs’ aggregate data was only “compelling on its surface.” Id. at 678-79.

Bean is directly applicable to Plaintiffs’ prima facie case here. If the court had more precise data that would allow it to evaluate each project’s impact on transit ridership, it could very well find that the proposed expansion plan actually favors minorities, or harms minorities to a greater extent than regional-level statistics may suggest. As it stands, however, Plaintiffs’ data is insufficient to foreclose either possibility, or permit a court to reach either conclusion.

[4] The district court’s inference that minorities were adversely affected by the RTEP is based on an inappropriate statistical measure and a logical fallacy, and is therefore clearly erroneous. See United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc) (“[W]e will affirm a district court’s factual finding unless that finding is illogical, implausible, or without support in inferences that may be drawn from the record.” (internal footnote omitted)). Plaintiffs have failed to provide statistical evidence that demonstrates the projects included in the 2006 amendment to the RTEP will have an adverse impact on minorities. By failing to provide an appropriately tailored statistical measure, Plaintiffs have not carried their burden to establish a prima facie case of disparate impact discrimination. See N.Y. City Envtl. Justice Alliance v. Giuliani, 214 F.3d 65, 71 (2d Cir. 2000) (“[T]he plaintiffs chose a [statistical] measure that was inadequate to allow us to ascribe significance to any alleged disparate impact of the City’s actions”).

“Because we may affirm on any ground supported by the record,” United States v. Tello, 600 F.3d 1161 (9th Cir. 2010),

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and because we think it unwise to rule on a state law issue of first impression when the resolution of a case does not require it, we do not address the district court’s decision as to any other aspects of Plaintiffs’ claims under California Government Code section 11135.

II. Intentional Discrimination

Plaintiffs challenge the district court’s summary judgment in favor of MTC on grounds that they failed to raise a triable issue of fact as to discriminatory intent. “Plaintiffs’ § 1983 claims alleging violations of equal protection and Title VI require similar proofs — plaintiffs must show that actions of the defendants had a discriminatory impact, and that defendants acted with an intent or purpose to discriminate based upon plaintiffs’ membership in a protected class.” CCCI, 583 F.3d at 702-03. Plaintiffs concede that they have no direct evidence of discrimination, but argue that circumstantial evidence creates a triable issue of fact as to intentional discrimination. See Arlington Heights v. Metro. Housing Dev. Corp, 429 U.S. 252, 266 (1977)). Even without direct evidence, a plaintiff may articulate discriminatory intent through evidence of (1) discriminatory impact; (2) “ ‘[t]he historical background of the decision . . . particularly if it reveals a series of official actions taken for invidious purposes’ ”; (3) “irregularities in the passage of legislation such as ‘departures from normal procedural sequence,’ ”; and (4) “ ‘legislative or administrative history’ such as ‘contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.’ ” Navarro v. Block, 72 F.3d 712, 716 (9th Cir. 1995) (quoting Arlington Heights, 429 U.S. at 266-67 (alterations in original)). To defeat summary judgment, Plaintiffs must present evidence based upon which any reasonable fact-finder could conclude that MTC acted “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group,” Pers. Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979).

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[5] As discussed above, Plaintiffs’ failure to establish that MTC’s challenged conduct has a discriminatory impact prevents any inference of intentional discrimination. Plaintiffs’ intentional discrimination claim relies on drawing equivalences, between (1) bus-riders and minorities, and (2) railriders and whites, that are not borne out by the data. Plaintiffs’ lack of any direct evidence of racial animus leaves us only with circumstantial evidence of a policymaking process that does not support an inference that MTC’s conduct is motivated by any racial bias.

[6] Plaintiffs argue that the district court engaged in impermissible “weighing of the evidence” at summary judgment; however, Plaintiffs’ evidence simply does not bear the weight of the inferences placed upon it. Viewed in the light most favorable to Plaintiffs, the evidence would not allow any reasonable factfinder to conclude that MTC’s decisions with respect to the 2006 RTEP were motivated “at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon [Plaintiffs].” Feeney, 442 U.S. at 279.

CONCLUSION

For the foregoing reasons, the judgment of the district court is AFFIRMED.

NOONAN, Circuit Judge, concurring:
The American instinct to cast controversies into a legal forum has been an American characteristic at least since Alexis de Tocqueville observed in 1835, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Tocqueville, Democracy in America, trans. Henry Reeves, revised by Francis Bowen, and ed. by Phillips Bradley, vol. 1, p. 280. No doubt the instinct is both laudable and optimistic — laudable

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because litigation is more peaceful than pugilistic and optimistic because it assumes that a court is capable of resolving almost any question.

The present case illustrates the instinct carried very far. A federal court is asked to review the allocation of billions of dollars among a variety of state agencies, some of them not before the court. The court is asked to look into the future to gauge the fairness of the allocations. The court is asked to assume the identity and interests of various parts of the population characterized by the litigants in terms of categories created by the racial origins of the persons living here today. Using these categories — hopelessly outdated in the Bay Area — this litigation presents a controversy in which the court is asked to determine the fairness of future plans dependent on at least seven factors which the court would have to measure, combine, and evaluate as a balanced or unbalanced combination.

The twentieth century racial categories so confidently deployed no longer correspond to American life among the young. See Susan Saulny, “Black? White? Asian? More Americans Chose All of the Above,” The New York Times, January 30, 2011, page 1 and page 20. What is true of the young is already characteristic of the Bay Area where social change has been fostered by liberal political attitudes, and a culture of tolerance. An individual bigot may be found, perhaps even a pocket of racists. The notion of a Bay Area board bent on racist goals is a specter that only desperate litigation could entertain.

The parties, the magistrate judge who heard them, and my colleagues have plunged heroically into the messy mass of facts, factors and guesses going into planning for regional transportation. The opinion of the court accurately concludes that the plaintiffs failed to show any intent to discriminate and failed to show any disparate impact from the funding planned.

 
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United States District Court For the Northern District of California

1

2

3

4

5

6

7

8 IN THE UNITED STATES DISTRICT COURT
9

10

FOR THE NORTHERN DISTRICT OF CALIFORNIA

11

12 SYLVIA DARENSBURG, et al.,

13

Plaintiffs,

14 v.

15

METROPOLITAN TRANSPORTATION COMMISSION,

16

Defendant.

/

17

No. C-05-01597 EDL
ORDER DENYING PLAINTIFFS’ MOTION FOR SUMMARY ADJUDICATION; GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT

18

In this class action case, Plaintiffs Sylvia Darensburg and Vivian Hain are individuals of

19 color, and Plaintiffs Amalgamated Transit Union 192 and Communities for a Better Environment are

20 organizations with minority members, who ride buses of the Alameda-Contra Costa Transit District

21 (“AC Transit”). AC Transit operates California’s largest bus-only transit system. Defendant is the

22 Metropolitan Planning Organization (“MPO”) for all twenty-six independent transit operators in the

23 nine-county Bay Area. Plaintiffs contend that Defendant Metropolitan Transportation Commission

24 intentionally engages in funding decisions and advocacy that disadvantage AC Transit’s largely

25 minority riders, in comparison to the whiter ridership of the other two “single mode” operators

26 within its jurisdiction, Peninsula Corridor Joint Powers Board (“Caltrain”), which operates trains,

27 and the Bay Area Rapid Transit District (“BART”), which operates heavy rail trains.

28

On April 1, 2008, Plaintiffs filed a motion for summary adjudication on the issue of whether

Plaintiffs have established a prima facie case of disparate impact discrimination arising out of

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United States District Court For the Northern District of California

1 Defendant’s practice of funding capital shortfalls, but failing to fund operating shortfalls, in the

2 Regional Transportation Plans (“RTP”) for the years 1994, 1998, 2001 and 2005. On April 22 and

3 23, 2008, Defendants filed three summary judgment motions, one challenging the standing of

4 individual Plaintiffs, one challenging the standing of the organizational Plaintiffs, and one arguing

5 that Plaintiffs have not raised a material issue of fact as to intentional discrimination, nor as to a

6 prima facie case of disparate impact sufficient to shift the burden to Defendant to justify its funding

7 decisions. These motions have been fully briefed and the Court heard oral argument on July 24,

8 2008. On August 1, 2008, the parties submitted post-hearing briefing as requested by the Court at

9 the hearing. For the reasons stated at the hearing and in this Order, Plaintiffs’ motion is denied, and

10 Defendants’ motions are granted in part and denied in part.

11 LEGAL STANDARD

12

Summary judgment shall be granted if “the pleadings, depositions, answers to

13 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no

14 genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of

15 law.” Fed. R. Civ. Pro. 56(c). Material facts are those which may affect the outcome of the case.

16 See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is

17 genuine if there is sufficient evidence for a reasonable jury to return a verdict for the nonmoving

18 party. Id. “To show the existence of a ‘genuine’ issue, . . . [a plaintiff] must produce at least some

19 significant probative evidence tending to support the complaint.” Smolen v. Deloitte, Haskins &

20 Sells, 921 F.2d 959, 963 (9th Cir. 1990) (quotations omitted). The court must not weigh the

21 evidence or determine the truth of the matter, but only determine whether there is a genuine issue for

22 trial. Balint v. Carson City, 180 F.3d 1047, 1054 (9th Cir. 1999). The court must view the facts in

23 the light most favorable to the non-moving party and give it the benefit of all reasonable inferences

24 to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587

25 (1986).

26

A party seeking summary judgment bears the initial burden of informing the court of the

27 basis for its motion, and of identifying those portions of the pleadings and discovery responses that

28 demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317,

2

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United States District Court For the Northern District of California

1 323 (1986). Where the moving party will have the burden of proof at trial, it must affirmatively

2 demonstrate that no reasonable trier of fact could find other than for the moving party. On an issue

3 where the nonmoving party will bear the burden of proof at trial, the moving party can prevail

4 merely by pointing out to the district court that there is an absence of evidence to support the

5 nonmoving party’s case. Id. If the moving party meets its initial burden, the opposing party must

6 then set forth specific facts showing that there is some genuine issue for trial in order to defeat the

7 motion. See Fed. R. Civ. P. 56(e); Anderson, 477 U.S. at 250.

8 BACKGROUND

9

A Regional Transportation Plan (“RTP”) is a planning document that is updated every four

10 years to look ahead at the coming twenty-five-year period to help achieve a balanced transportation

11 scheme including, inter alia, mass transit, highways, bicycles, and pedestrians. See Cal. Gov. Code.

12 §§ 65080, 66513, 29532. The current RTP, adopted in 2005, is called Transportation 2030, and

13 Defendant is currently working on the 2009 RTP. Defendant uses the RTP to allocate federal and

14 state funding to operating and capital categories. Funding sources include Transportation

15 Development Act (TDA) funds, State Transportation Assistance (STA) funds, AB 1107 funds,

16 federal funds flowing from 49 U.S.C. §§ 5307 and 5309, Congestion Mitigation and Air Quality

17 (“CMAQ”) funds, Surface Transportation Program (“STP”) funds, and State Transportation

18 Improvement Program (“STIP/RTIP”) funds, as well as local funding sources such as bridge tolls.

19 Plaintiffs argue that the failure to cover operating shortfalls, while simultaneously covering capital

20 shortfalls, constitutes discrimination against minorities who use AC Transit.

21

Of the twenty-six transit operators under Defendant’s purview, the seven largest in terms of

22 operating costs are (in order starting with the largest): (1) San Francisco Municipal Railway

23 (“MUNI”); (2) BART; (3) Santa Clara Valley Transit Authority (“VTA”); (4) AC Transit; (5)

24 Golden Gate Highway and Transportation District (“GGT”); (6) San Mateo County Transit District

25 (“SamTrans”); and (7) Caltrain. See Declaration of Therese McMillan Decl. Ex. A at 8. In 2006,

26 Defendant commissioned a region-wide survey of transit ridership that revealed that of the twenty-

27 one operators surveyed, nineteen had a minority ridership of 50% or more. See McMillan Decl. Ex.

28 B at 3-95-98. AC Transit had the highest percentage of minority ridership at 78%. But five of the

3

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1 others in the group of seven largest operators had minority riderships of at least 50%: (1) MUNI

2 (58%); (2) VTA (70%); (3) SamTrans (70%); (4) Caltrain (51%); and (5) BART (54%). See id. In

3 absolute numbers, AC Transit carries fewer minority passengers than either BART or MUNI. See

4 McMillan Decl. ¶ 5. Only one of the top seven, Golden Gate Transit, has mostly white riders, with a

5 minority ridership of 38%.

6

Plaintiffs initially based their disparate impact analysis on a comparison of AC Transit to

7 BART and Caltrain, on the rationale that these three entities are the only “single mode” transit

8 operators. In its opposition, Defendant mounted a strong attack on Plaintiffs’ comparison of only

9 three operators, all of whom operate a different mode of transit -- bus, heavy rail and train. In their

10 reply papers, Plaintiffs also compared the seven largest operators within the metropolitan planning

11 area, which together account for 95% of all trips on public transit in the Bay Area. In that group, the

12 pattern is less clear. Some of these seven operators with a high percentage of minority riders did not

13 have projected operating shortfalls. For example, Samtrans, with a minority ridership of 70%, had

14 no operating shortfalls in the three most recent RTPs. See Declaration of Richard Marcantonio Ex.

15 22. At the same time, the only one of these operators with a mostly white ridership, Golden Gate

16 Transit, had a projected operating shortfall in three RTPs. See id.

17 DISCUSSION

18 1. 19 20 21 22 23 24

Defendant’s Motion for Summary Judgment Regarding Standing of Individual Plaintiffs
The “irreducible minimum” of standing consists of three elements:
First, the plaintiff must have suffered an “injury in fact” -- an invasion of a legally protected interest which is (a) concrete and particularized, [citations omitted] and (b) ‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical,’ [citations omitted]. Second, there must be a causal connection between the injury and the conduct complained of - the injury has to be ‘fairly . . . traceable to the challenged action of the defendant, and not . . . the result of the independent action of some third party not before the court.’ [citations omitted]. Third, it must be ‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’

25 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). In response to a summary judgment
26 motion challenging standing, a plaintiff “can no longer rest on such ‘mere allegations,’ but must ‘set
27 forth’ by affidavit or other evidence ‘specific facts,’ Fed. R. Civ. P. 56(e), which for purposes of the
28 summary judgment motion will be taken to be true.” Id. at 561; see also Central Delta Water

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1 Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002) (“Thus, at the summary judgment stage

2 the plaintiffs need not establish that they in fact have standing, but only that there is a genuine

3 question of material fact as to the standing elements.”).

4

“In a class action, standing is satisfied if at least one named plaintiff meets the

5 requirements.” Bates v. UPS, 511 F.3d 974, 985 (9th Cir. 2007); see also Armstrong v. Davis, 275

6 F.3d 849, 860 (9th Cir. 2001) (“In order to assert claims on behalf of a class, a named plaintiff must

7 have personally sustained or be in immediate danger of sustaining ‘some direct injury as a result of

8 the challenged statute or official conduct.’”) (quoting O’Shea v. Littleton, 414 U.S. 488, 494

9 (1974)). The Ninth Circuit has adopted the Lujan standard for determining standing. See Bates, 511

10 F.3d at 985. As stated in Bates:

11

The standing formulation for a plaintiff seeking prospective injunctive relief is simply

one implementation of Lujan’s requirements. The plaintiff must demonstrate that he

12

has suffered or is threatened with a “concrete and particularized” legal harm, Lujan,

504 U.S. at 560, 112 S.Ct. 2130, coupled with “a sufficient likelihood that he will

13

again be wronged in a similar way.” City of Los Angeles v. Lyons, 461 U.S. 95, 111,

103 S.Ct. 1660, 75 L.Ed.2d 675 (1983). As to the second inquiry, he must establish a

14

“real and immediate threat of repeated injury.” O'Shea v. Littleton, 414 U.S. 488,

496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974). “[P]ast wrongs do not in themselves

15

amount to [a] real and immediate threat of injury necessary to make out a case or

controversy.” Lyons, 461 U.S. at 103, 103 S.Ct. 1660. However, “past wrongs are

16

evidence bearing on whether there is a real and immediate threat of repeated injury.”

O'Shea, 414 U.S. at 496, 94 S.Ct. 669. In addition, the claimed threat of injury must

17

be likely to be redressed by the prospective injunctive relief. Graham v. Fed.

Emergency Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir.1998) (recognizing that

18

“[p]laintiffs need not demonstrate that there is a ‘guarantee’ that their injuries will be

redressed by a favorable decision” but “only that a favorable decision is likely to

19

redress” their injuries) (quotation marks and citation omitted).

20 Bates, 511 F.3d at 985-86; see also Armstrong, 275 F.3d at 860 (stating that “[t]he harm suffered by
21 a plaintiff must constitute ‘actual injury,’ and that where a plaintiff seeks prospective injunctive
22 relief, “he must demonstrate ‘that he is realistically threatened by a repetition of [the violation].’”)
23 (citations omitted).
24 A. Injury in fact
25 Plaintiffs rely on three injuries in fact to support standing: (1) stigmatic; (2) quality of life;
26 and (3) economic. The legal requirements for all three were extensively analyzed in the Court’s
27 prior orders resolving Defendant’s two motions to dismiss.
28 i. Stigmatic injury

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1

Stigmatic injuries may satisfy the “injury in fact” component of standing. See, e.g., Heckler

2 v. Mathews, 465 U.S. 728, 739-40 (1984) (“. . . discrimination itself, by stigmatizing members of the

3 disfavored group as ‘innately inferior’ and therefore less worthy participants in the political

4 community, [citation omitted], can cause serious non-economic injuries to those persons who are

5 personally denied equal treatment solely because of their membership in a disfavored group.”).

6 Where a plaintiff can show injury in fact based on stigma, that showing also simultaneously satisfies

7 the other two standing requirements of causation and redressability, because the discrimination

8 directly causes the stigma and its cessation by itself eliminates the stigma. Even a facially neutral

9 law may be administered in such a blatantly discriminatory fashion in order to harm disfavored

10 racial minorities that the stigma is readily apparent. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356,

11 373 (1886) (the seminal case of “as applied” discrimination against Chinese aliens, reasoning that

12 “the facts shown establish an administration directed so exclusively against a particular class of

13 persons as to warrant and require the conclusion that . . . they are applied by the public authorities . .

14 . with a mind so unequal and oppressive as to amount to a practical denial by the state of the equal

15 protection of the laws”); Keyes v. School Dist. No. 1 Denver, CO, 413 U.S. 189, 201 (1973) (even

16 though school district was not overtly segregated by statute, school authorities who carried out a

17 systematic program of segregation, e.g., by manipulating school attendance zones, created an illegal

18 dual system).

19

Plaintiffs argue that Defendant’s two-tiered approach to funding, which covers capital

20 rehabilitation shortfalls in the RTPs, but not operating shortfalls, disproportionately harms minorities

21 to such an extent that although the policy is facially neutral, it stigmatizes AC Transit’s minority

22 riders. For example, Plaintiffs point to the Regional Transit Expansion Program (“RTEP”)

23 embodied in Resolution No. 3434, which focuses on rail expansion and includes over $13 billion in

24 expansion projects, of which only 2.5% are earmarked for bus projects. See Marcantanio Decl. Ex.

25 14 at 584-85; Declaration of Thomas Rubin Ex. 2 at ¶ 46. By contrast, Plaintiffs point to the

26 Lifeline program, which Defendant has described as “on equal footing” and an “equally important

27 priority” as the RTEP (see Declaration of Richard Marcantanio in Opp’n to Defs.’ Mot. for Summ.

28 Adjudication and/or Summ. J. Ex. 71 at 35; Ex. 21 at MTCP 151097; Ex. 75 at MTCP 090646-47),

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1 but which is not fully funded (see Marcantanio Decl. Ex. 8 at 027068 (funding of $216 million out

2 of an estimated need of $2 billion)). Plaintiffs state that because of this alleged two-tiered system,

3 they are made to feel that they are worth less than their white counterparts and that they are unequal

4 participants in the community. See, e.g., Declaration of Vivian Hain ¶ 30 (“However, MTC’s

5 repeated under-funding of AC Transit makes me, and other minority riders of AC Transit, feel that

6 we are not entitled to the same quality and quantity of service as BART’s more white ridership.”);

7 Declaration of Margo Robinson ¶ 14 (“MTC’s unequal funding policies and practices also send me a

8 message that I and other riders of color are not as worthy of high-quality transit services as the

9 relatively white ridership of other transit. MTC’s unequal funding policies and practices also send

10 me the message that MTC is more interested in serving white riders than minority riders.”);

11 Declaration of Jose Casias ¶ 22 (“MTC’s funding policies and practices communicate the clear

12 message that I and other minority riders are unequal community participants, that I and other

13 minority riders are worth less than the disproportionately white riders who use other transit

14 operators, and that MTC heeds the needs of white riders, while it ignores the needs of minority

15 riders.”); Declaration of Sylvia Darensburg ¶ 33 (“MTC’s repeated under-funding of AC Transit

16 makes me, and other minority riders of AC Transit, feel like unequal patrons and make us feel that

17 we are not entitled to the same quality and quantity of service as BART’s more white ridership.”).

18

Plaintiffs, however, have not raised a triable issue of fact as to stigmatic injury. First,

19 Defendant’s funding decisions do not fall into nearly as stark a pattern, nor impact Plaintiffs nearly

20 as directly, as in the cases finding stigmatic injury. For example, with respect to “committed”

21 funding sources, Defendant has produced evidence that it does not have control over all the funding,

22 and that when it does have control, it has allocated operations funding unequally in favor of AC

23 Transit. For example, Transportation Development Act (TDA) funds are generated by an one-

24 quarter-cent sales tax, apportioned by county. See Cal. Pub. Util. Code §§ 99200, et seq. According

25 to Ms. McMillan, Defendant’s Deputy Executive Director of Policy, Defendant has given much

26 more TDA funding to AC Transit over the last six years than to BART and Caltrain combined. See

27 McMillan Decl. ¶ 13. In addition, State Transportation Assistance (STA) funds are generated by a

28 sales tax on fuel. See Cal. Pub. Util. Code § 99313.6, et seq. Defendant distributes half of the STA

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1 funds and has allocated AC Transit its share, including much more for operating costs than was

2 allocated to BART and Caltrain combined. See McMillan Decl. ¶ 11, ¶ 13. Moreover, AB 1107

3 funds come from a half-cent sales tax originally imposed to build BART. See Cal. Pub. Util. Code §

4 29142.2. This law dedicates 75% of funds to BART, and then the remaining 25% may go to BART,

5 MUNI or AC Transit. Defendant allocates the 25% equally to AC Transit and MUNI, and none to

6 BART, even though BART is eligible and MUNI’s ridership greatly exceeds AC Transit’s. See

7 McMillan Decl. ¶ 13. Defendant has no control over the majority of local funding including

8 permanent and temporary half-cent sales taxes by county and voter-approved property taxes. See

9 McMillan Decl. ¶ 14. Defendant also has no control over the disposition of funds generated by

10 transit fares. See id.

11

Complicating the picture further, BART and Caltrain each have almost 50% minority riders,

12 who benefit from the funding of these two entities; indeed, because BART’s ridership is so much

13 higher than AC Transit’s, BART carries more minority riders in absolute numbers than AC Transit.

14 (Of course, BART also carries an even larger absolute number of white riders). Moreover, Golden

15 Gate Transit, which serves a mostly white ridership (63%), has experienced repeated unfunded

16 projected operating shortfalls, and has cut service substantially. Thus, the funding policies and their

17 implementation are not so blatantly discriminatory as to raise a triable issue of fact as to a stigmatic

18 injury.

19

ii. Quality of life injury

20

Actual injury to the quality of life constitutes an injury in fact for purposes of standing. See

21 Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59, 73-74, n. 18 (1978)

22 (“Certainly the environmental and aesthetic consequences of the thermal pollution of the two lakes

23 in the vicinity of the disputed power plants is the type of harmful effect which has been deemed

24 adequate in prior cases to satisfy the injury in fact standard. . . . We do not question that this type of

25 injury may amount to an injury in fact sufficient to lay the basis for standing. Aesthetic and

26 environmental well-being, like economic well-being, are important ingredients of the quality of life

27 in our society.”). Plaintiffs argue that the evidence shows that their quality of life has suffered as a

28 result of Defendant’s practice of refusing to cover operating shortfalls because AC Transit reduces

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1 service causing reduced mobility, increased inconvenience and increased safety risks to Plaintiffs.

2 See, e.g., Darensburg Decl. ¶ 11 (long commute time due to limited buses prevented her from

3 holding certain jobs); id. ¶¶ 13, 15 (unreliability of service makes it difficult to get to work on

4 time);id. ¶ 15 (commute takes longer because of delays in service); id. ¶ 17 (cuts in service require

5 multiple bus transfers); Declaration of Octavio Hernandez ¶ 13 (buses needed by declarant are

6 normally not running on time causing him to be late to work and to receive warnings regarding

7 tardiness); id. ¶ 15 (must wait longer for buses); id. ¶ 18 (feels unsafe at night on the bus); id. ¶ 19

8 (buses are dirty and not well ventilated); Casias Decl. ¶ 8 (wait for the bus in unsafe neighborhood

9 has increased); id. ¶ 10 (commute time to work is two or more hours); Robinson Decl. ¶¶ 9, 10

10 (service cuts made it more difficult for declarant to get to relief points as bus driver in time); Hain

11 Decl. ¶ 10 (noticed worsened public safety, overcrowding, reduction in service and longer waits); id.

12 ¶ 16 (forced to drop college classes due to lack of reliable transportation); id. ¶ 18 (service cuts

13 caused her to be late for work); id. ¶ 19 (service cuts made it impossible to get to doctor’s

14 appointments and so only attends when has a functioning car and can afford gas); id. ¶ 21 (difficult

15 to pick up children at school); id. ¶ 25 (stress caused by transportation issues, including exacerbated

16 back condition due to walking); Declaration of Virginia Martinez ¶ 13 (decreased frequency of buses

17 caused her to be late to work); id. ¶ 16 (buses do not run as frequently as she needs); id. ¶ 17 (had to

18 cut medical appointments short in order to pick up her children from school); id. ¶¶ 21-22 (children

19 had to walk long distances to and from school); Declaration of Conception Chavez ¶ 9 (services cuts

20 caused her to be late to church and appointments); id. ¶ 16 (sometimes she feels unsafe waiting so

21 long for the bus); Declaration of Rebecca Jones-White Decl. ¶ 7 (elimination of night service left her

22 unable to safely travel home at night). Although Defendant argues that Plaintiffs should also

23 provide statistical data, Plaintiffs’ own experiences sufficiently demonstrate their quality of life

24 injury.

25

iii. Economic injury

26

Concrete economic injury can be a sufficient basis for this prong of standing. See

27 Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 189 (1970); see

28 also Sierra Club v. Morton, 405 U.S. 727, 733 (1972). Plaintiffs argue that they suffer economic

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1 harm by paying higher fares, or being forced to use cars that they can ill afford. See, e.g., Hain Decl.

2 ¶ 13 (had to miss classes at school because could not afford bus fare and food); id. ¶ 25 (cannot

3 afford to buy second bus fare for each member of family when routes are reconfigured); id. ¶ 27 (if

4 fares are increased, will have to choose between transportation and household expenses and

5 necessities); Darensburg Decl. ¶ 10 (increased fares have caused her to reduce other household costs

6 or restrict her travel); id. ¶ 21 (at times she is unable to grocery shop until she has saved up enough

7 money to buy a monthly pass); Robinson Decl. ¶ 11 (purchased a car because the busline near her

8 home does not run conveniently to the places she commutes); id. ¶ 12 (car payments, insurance and

9 maintenance cause an additional financial burden); Casias Decl. ¶ 12 (bus fares are difficult to avoid,

10 often does not have the money to buy a monthly pass); Hernandez Decl. ¶ 17 (increased fares caused

11 him to miss work because there was no money for the fare); Martinez Decl. ¶ 34 (fares have

12 increased which cuts into grocery budget and causes marital problems); id. ¶ 35 (cost of monthly

13 pass is prohibitive); Chavez Decl. ¶ 14 (cannot afford fare increases); Jones-White Decl. ¶ 8

14 (elimination of service caused her to take taxis, which are more expensive). Plaintiffs have met their

15 burden of demonstrating an economic injury for purposes of summary judgment.

16

B. Causation

17

The causation prong of the standing analysis is satisfied if the alleged injury is fairly

18 traceable to the purportedly illegal conduct. See Lujan, 504 U.S. at 560-61 (quoting Simon, 426

19 U.S. at 41-42). Defendant argues that Plaintiffs cannot establish causation because AC Transit,

20 which is not a party to this case, makes the final decisions that directly affect Plaintiffs. See Lujan,

21 504 U.S. at 562 (“When, however, as in this case, a plaintiff’s asserted injury arises from the

22 government’s allegedly unlawful regulation (or lack of regulation) of someone else, much more

23 [proof of causation] is needed.”) (emphasis added). The Lujan Court stated:

24

In that circumstance, causation and redressability ordinarily hinge on the response of the regulated (or regulable) third party to the government

25

action or inaction -- and perhaps on the response of others as well. The existence of one or more of the essential elements of standing ‘depends on

26

the unfettered choices made by independent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot

27

presume either to control or to predict,’ [citation omitted]; and it becomes the burden of the plaintiff to adduce facts showing that those choices have

28

been or will be made in such a manner as to produce causation and permit redressability of injury. [citation omitted]. Thus, when the plaintiff is not

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1

himself the object of the government action or inaction he challenges, standing is not precluded, but it is ordinarily ‘substantially more difficult’

2

to establish. [citation omitted]

3 Lujan, 504 U.S. at 562 (emphasis added).

4

Here, because causation turns on the decisions of a third party in response to Defendant’s

5 actions, Plaintiffs must show that Defendant’s actions have a determinative or coercive effect on AC

6 Transit’s funding decisions to Plaintiffs’ disadvantage. See Bennett v. Spear, 520 U.S. 154, 168

7 (2000) (“While, as we have said, it does not suffice if the injury complained of is ‘“‘the[] result [of]

8 the independent action of some third party not before the court’”’ [citations omitted], that does not

9 exclude injury produced by determinative or coercive effect upon the action of someone else.”). At

10 a minimum, Defendant’s actions must constitute a “substantial factor motivating” AC Transit’s

11 decision. See Tozzi v. U.S. Department of Health and Human Servs, 271 F.3d 301, 308 (D.C. Cir.

12 2002) (“Where, as here, the alleged injury flows not directly from the challenged agency action, but

13 rather from independent actions of third parties, we have required only a showing that ‘the agency

14 action is at least a substantial factor motivating the third parties’ actions.’[citation omitted]”).

15

Plaintiffs argue that causation is established because Defendant itself stated in 1994 that the

16 failure to fund operating shortfalls would force AC Transit to cut service and raise fares. See

17 Marcantonio Opp. Decl. Ex. 54 at 60 (1994 RTP in which Defendant states “service reductions are

18 assumed to account for significant shortfalls.”); id. at 63 (the then-current recession caused shortfall

19 in operating funds and has required a projected 5% reduction in service from planned service levels

20 for AC Transit and Golden Gate Transit). Plaintiffs also rely on their expert’s opinion that the

21 standard response to a projected shortfall is an immediate reduction in service, and that the unfunded

22 shortfalls caused a 9.6% decline in service levels. See Rubin Decl. ¶¶ 11, 23.

23

By contrast, Defendant presents evidence that the reductions in AC Transit’s service in 2002-

24 2003 were due not to long term projections, but to an unexpected short term downturn in the

25 economy; in those years, sales tax revenue was lower than expected, which precipitated the service

26 cuts. See Skowbo Decl. Ex. D at 1-10. Moreover, Defendant argues that the projected shortfalls are

27 merely twenty-five year projections, which may never materialize and are for such a lengthy period

28 that they have no immediate impact. Plaintiffs counter with their experts’ opinion that “. . . the

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1 existence and size of a present or forecasted operating shortfall is both an excellent indicator of

2 whether an operator will be able to continue to provide its existing level of service, and a useful

3 measure of the degree to which it will be forced to cut existing service.” Rubin Decl. Ex. 2 at ¶ 94

4 (“At the same time, the degree to which MTC covers operating and capital rehabilitation shortfalls in

5 the RTP process measures the amount of assistance MTC provides to operators to enable them to

6 continue to operate and maintain the existing system.”).

7

In addition, Defendant points out that when AC Transit has experienced an actual operating

8 shortfall, Defendant has allocated preventative maintenance funds to AC Transit to help with

9 operating expenses. See, e.g., McMillan Decl. ¶ 21, Ex. I ($49 million in preventative maintenance

10 funds to AC Transit in 200-01); ¶ 22, Ex. J at 5 ($10 million in preventative maintenance funds to

11 AC Transit in 2002-03); ¶ 44, Ex. CC at 4 ($17 million in preventative maintenance funds to AC

12 Transit for 2003-04); ¶ 20, Ex. H at 5 ($13.7 million in preventative maintenance funds to AC

13 Transit for 2005-06). Accordingly, there is a triable issue of fact as to causation.

14

C. Redressability

15

Plaintiffs “must show only that a favorable decision is likely to redress [their injuries], not

16 that a favorable decision will inevitably redress [their injuries].” Graham v. Fed. Emerg. Mgmt.

17 Agency, 149 F.3d 997, 1003 (9th Cir. 1998) (quoting Beno v. Shalala, 30 F.3d 1057, 1065 (9th

18 Cir.1994) (citing Lujan, 504 U.S. at 561, 112 S.Ct. 2130)). However, a plaintiff’s standing fails

19 “where it is purely speculative that a requested change in government policy will alter the behavior

20 of regulated third parties that are the direct cause of plaintiff’s injuries.” National Wrestling

21 Coaches Ass’n v. Department of Education, 366 F.3d 930, 938 (D.C. Cir. 2004) (“Because necessary

22 elements of causation and redressability hinge on the independent choices of the regulated third

23 party, ‘it becomes the burden of the plaintiff to adduce facts showing that those choices have been or

24 will be made in such a manner as to produce causation and permit redressability of injury.’”)

25 (quoting Lujan, 504 U.S. at 562). “[T]he Supreme Court has stated that plaintiffs lack standing

26 primarily when the funding agency is not before the court, Lujan, 504 U.S. at 568-71, 112 S.Ct.

27 2130 (plurality opinion), or when redressability ‘depends on the unfettered choices made by

28 independent actors not before the courts and whose exercise of broad and legitimate discretion the

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1 courts cannot presume either to control or predict.’ ASARCO, Inc. v. Kadish, 490 U.S. 605, 615,

2 109 S.Ct. 2037, 104 L.Ed.2d 696 (1989) (plurality opinion).” Graham, 149 F.3d at 1003. In Lujan,

3 the Court determined that standing was lacking under circumstances that Defendant argues are

4 similar to this case:

5

The most obvious problem in the present case is redressability. Since the agencies funding the projects were not parties to the case, the District Court could accord relief

6

only against the Secretary: He could be ordered to revise his regulation to require consultation for foreign projects. But this would not remedy respondents' alleged

7

injury unless the funding agencies were bound by the Secretary's regulation, which is very much an open question.

8 Lujan, 504 U.S. at 568.

9

Causation and redressability are essentially two sides of one coin. See Duke Power Co. v.

10 Carolina Environmental Study Group, Inc., 438 U.S. 59, 74 (“The more difficult step in the standing

11 inquiry is establishing that these injuries ‘fairly can be traced to the challenged action of the

12 defendant,’ or put otherwise, that the exercise of the Court’s remedial powers would redress the

13 claimed injuries.”) (internal citations omitted); see also Gonzales v. Gorsuch, 688 F.2d 1263, 1267

14 (9th Cir. 1982) (“There is a close relation between the requirement of power to redress a claimed

15 injury and the requirement of a causal link between the injury asserted and the relief claimed.”).

16 Plaintiffs argue that their quality of life and economic injuries are redressable through the injunctive

17 relief they seek because the relief would result in additional funding to AC Transit which would lead

18 to increased service and no more fare increases. See Pls.’ Combined Reply and Opp’n Brief re:

19 Motions for Summ. J. and Summ. Adjudication at 64, n. 99 (citing Am. Compl. at Prayer for Relief

20 ¶¶ 5-6) (Plaintiffs seek an order “to permanently enjoin Defendant MTC from making any funding

21 decision that has an unjustified disproportionately adverse impact on AC Transit riders of color,

22 including decisions that cause (a) AC Transit to experience an unfunded transit operating shortfall

23 while not causing operating shortfalls that affect BART or Caltrain, or while funding capital

24 shortfalls that disproportionately benefit BART or Caltrain, (b) an inequitable subsidy per passenger

25 trip for AC Transit passengers as compared to Caltrain or BART passengers, and/or (c) an

26 inequitable quantity and quality of service for AC Transit passengers as compared to Caltrain or

27 BART passengers; to permanently enjoin Defendant MTC from supporting the funding of or funding

28 any improvement or expansion in service that detracts from the equitable funding of services that

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1 benefit AC Transit riders.”).

2

Plaintiffs argue that if Defendant was required to give additional funding to AC Transit, AC

3 Transit would be able to maintain service levels over time rather than cut service, and would

4 implement service improvements such as the Strategic Vision Plan, which is a two-phase

5 implementation of capital and service improvements over a ten-year period to address “local

6 concerns, achieve significant ridership increases and enhance mobility in the service area.” See

7 Marcantonio Opp. Decl. Ex. 84 at 50. Plaintiffs would benefit from improvements described in the

8 Strategic Vision Plan. See, e.g., Martinez Decl. ¶ 43 (would benefit from benches and covered bus

9 stops, exclusive bus lanes and more frequent service); Darensburg Decl. ¶¶ 29-31 (would benefit

10 from enhanced bus service and increased frequency of service, and newer low-floor vehicles); Hain

11 Decl. ¶¶ 28-29 (same); Casias Decl. ¶¶ 16-20 (same).

12

Defendants respond that Plaintiffs’ injuries are not redressable for a number of reasons, some

13 of which were addressed above in the discussion of causation. In particular, Defendant strongly

14 disputes that it can shift a significant amount of funds away from capital expenses of other operators

15 to AC Transit’s operating expenses, thereby redressing its operating shortfalls, based on Defendant’s

16 contention, discussed below, that most of the funding sources under its control are dedicated by law

17 to other uses. Further, Defendant argues that even if it covered AC Transit’s operating shortfalls in

18 the RTPs, Plaintiffs have not shown a likelihood that AC Transit would implement the Strategic

19 Vision Plan, would increase service frequency or would avoid fare increases. Defendant also points

20 to AC Transit’s board policy 550, which guides the service plan for AC Transit, as mitigating the

21 impact of cuts in service on Plaintiffs: “AC Transit will allocate service primarily on the basis of

22 demand, provided that certain minimum service levels are provided. Geographic equity is a

23 consideration, but is not as important as providing more frequency when such service is warranted.”

24 Skowbo Decl. Ex. B at 2. In line with this policy, AC Transit preserved the trunk lines that

25 Plaintiffs mostly ride, while it cut less traveled routes in the hills where the ridership tends to be

26 whiter. On the other hand, Plaintiffs have undisputedly suffered from service cuts and far hikes,

27 which seem likely to be alleviated by additional funds. While Defendant points to recent evidence

28 that AC Transit was primarily concerned about the rising costs of fuel and health insurance (see

14

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1 Marcantonio Opp. Decl. Ex. 83), spending additional funds to meet these rising costs would help

2 avoid further cuts in service or fare hikes.

3

D. Conclusion

4

Defendant’s motion for summary judgment as to Plaintiffs’ standing is granted as to the

5 stigmatic injury, but is denied as to the quality of life and economic injury. There is a triable issue

6 of fact as to causation of these two injuries.

7 2. Defendant’s Motion for Summary Judgment regarding Organizational Plaintiffs

8

A. Standing

9

Defendant also challenges the standing of the two organizational Plaintiffs in this case:

10 Amalgamated Transit Union, Local 192 (“ATU 192”) and Communities for a Better Environment

11 (“CBE”). An organization has standing when: (1) its members would otherwise have standing to sue

12 in their own right; (2) the interests that it seeks to protect are germane to the organization’s purpose

13 and (3) neither the claim asserted nor the relief requested requires the participation of individual

14 members in the lawsuit. See Hunt v. Washington State Apple Advertising Commission, 432 U.S.

15 333, 343 (1977); see also United Food and Commercial Workers Union v. Brown Group, 517 U.S.

16 544, 557 (1996) (finding that only the third prong of the Hunt test is prudential, not constitutional, in

17 nature: (“[T]he third prong of the associational standing test is best seen as focusing on these matters

18 of administrative convenience and efficiency, not on elements of a case or controversy within the

19 meaning of the Constitution.”). For the same reasons as the individual Plaintiffs, there is a triable

20 issue of fact as to the organizational Plaintiffs on the first prong of this test. The third prong is

21 satisfied because the Plaintiffs seek declaratory and prospective relief, rather than monetary

22 damages, so the organizations’ members need not participate in the litigation. See Alaska Fish &

23 Wildlife Fed’n & Outdoor Council v. Dunkle, 829, F.2d 933, 938 (9th Cir. 1987).

24

Defendant contends that the interests at stake in this lawsuit are not germane to the

25 organizations’ purpose. ATU 192 represents transit employees, including bus, rail and ferry

26 operators. See Hoffman Decl. Ex. B. ATU 192 advocates for its members primarily in the areas of

27 wages, benefits and working conditions. See Hoffman Decl. Ex. C at 38. The Objects in ATU 192’s

28 Constitution include not only furthering the direct interests of members, but also seeking the

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1 improvement of social and economic conditions. See Hoffman Decl. Ex. D at 5. The by-laws

2 include the objectives of promoting charitable activities and public relations consistent with interests

3 of members. See Hoffman Decl. Ex. A at 4. Political action is a priority for ATU 192. See

4 Hoffman Decl. Ex. E. ATU’s legislative agendas reveal that they are interested in, inter alia,

5 increasing funding for public transit, including to “allow certain federal transit funds to be used for

6 operating assistance.” See Hoffman Decl. Ex. F, G.

7

CBE is a “social justice organization with a focus on environmental health and justice.” See

8 Hoffman Decl. Ex. H. It organizes in “working class communities of color because those

9 communities suffer the most from environmental pollution and toxics.” See id. “CBE works in

10 urban communities in Northern and Southern California among low-income African Americans,

11 Latinos and other nationalities who are bombarded by pollution from freeways, power plants, oil

12 refineries, seaports, airports and chemical manufacturers.” See id. The vision of CBE is to “protect

13 the earth and human life for future generations.” See Hoffman Decl. Ex. I. In addition to this case,

14 CBE’s current litigation includes protecting children from dirty diesel fumes, reducing emissions

15 from steel plants, prohibiting cremetoria from operating in Richmond, stopping construction of new

16 power plants, pursuing enforcement of the Clean Water Act, and reducing pollution from oil

17 refineries. See Hoffman Decl. Ex. L.

18

Defendant argues that seeking to promote racial equality in access to public transportation by

19 forcing Defendant to allocate more funding to AC Transit and less to other transit operators is not

20 germane to the organizational purposes of either organizational Plaintiff. The germaneness test,

21 however, is “undemanding.” Presidio Golf Club v. National Park Serv., 155 F.3d 1153, 1159 (9th

22 Cir. 1998); see also Humane Soc’y of the United States v. Hodel, 840 F.2d 45, 58 (D.C.Cir.1988) (as

23 amended) (“It remains only to note that in thus characterizing the germaneness requirement as

24 mandating mere pertinence between litigation subject and organizational purpose, we join a number

25 of other courts which ... have declared it undemanding.”) (collecting cases). The Hodel court

26 concluded that germaneness “would seem to require only that an organization’s litigation goals be

27 pertinent to its special expertise and the grounds that bring its membership together.” Hodel, 840

28 F.2d at 56; accord Nat’l Lime Ass’n v. Envtl. Prot. Agency, 233 F.3d 625, 636-37 (D.C.Cir.2000).

16

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1

Both organizational Plaintiffs satisfy this requirement. ATU 192 is a union representing

2 individuals in the transportation industry in the Bay Area, and has among its goals, improving

3 general social and economic conditions. See Williams Decl. ¶ 5. Ms. Williams, the president of

4 ATU 192, states that currently most of the ATU 192 members are racial minorities. See id. ¶ 3.

5 ATU 192 has advocated in furtherance of the interests of AC Transit riders as well as its own

6 members in opposition to fare hikes and service cuts. See id. ¶ 5. Even if not all of ATU 192’s

7 members may benefit from this lawsuit, the organization still has standing:

8

Although some Society members, preferring that refuges be closed to the public altogether, may not share this aesthetic goal, our decision in National Maritime Union

9

of America v. Commander, Military Sealift Command, 824 F.2d 1228 (D.C.Cir.1987) forecloses this internal conflict as a basis for defeating associational standing. See id.

10

at 1234 (“we think that the mere fact of conflicting interests among members of an association does not of itself defeat the association's standing to urge the interests of

11

some members in litigation, even though success may harm the legal interests of some members”).

12 Hodel, 840 F.2d at 60, n. 25.1

13

Similarly, the mission of CBE is to “achieve environmental health and justice by building

14 grassroots power in and with communities of color and working-class communities.” See

15 www.cbecal.org/about/mission.html. The issues in this lawsuit, equality in transportation funding

16 and quality of public transportation in low-income areas, are at least pertinent to that mission.

17 Defendant’s arguments to the contrary contemplate a showing well beyond the established low

18 threshold for germaneness.

19

B. Prior settlement with CBE

20

Defendant argues that it is entitled to summary judgment as to CBE on the ground that CBE

21 has waived all claims related to the 2005 RTP, the only RTP within the statute of limitations, and

22 therefore cannot challenge prior RTPs either. In 2002, CBE sued Defendant and others over the

23 adoption of the 2001 San Francisco Bay Area Ozone Attainment Plan for the 1-Hour National Ozone

24

25

1

Defendant’s reliance on Local 186, International Brotherhood of Teamsters v. Brock, 812

26 F.2d 1235 (9th Cir.1987) is misplaced. That case held that challenging a racketeering act disqualifying

persons convicted of certain crimes from seeking employment in a labor organization in order to 27 reinstate a convicted arsonist as a union official was not germane to the purposes of a labor union. See

id. at 1239. The court found that although the arsonist had suffered a cognizable injury, no other union 28 members had. Id. at 1238 (allegations that members were deprived of Fry’s services and that other

members could someday be similarly disqualified were “abstract hypotheticals”).

17

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1 Standard in San Francisco Superior Court, alleging that Defendant failed to implement a

2 Transportation Control Measure Plan (“TCM”) that would achieve the required reduced emissions

3 from transportation sources to meet air quality standards. See Declaration of Adam Hoffman Ex. V.

4 In March 2004, CBE entered into a settlement agreement resolving that lawsuit. The agreement

5 required Defendant to, inter alia, prepare annual reports for five years detailing projects and

6 programs that are recipients of Defendant’s discretionary funding decisions from certain funding

7 sources, including some funds at issue in this case. See McMillan Decl. Ex. AA at 9. In

8 consideration, CBE released related claims:

9

CBE and TRANSDEF, on behalf of themselves and their respective directors, officers, employees, agents, representatives, successors in interest or assigns, waive,

10

relinquish, and release any and all claims, rights, liabilities, demands, obligations, duties, promises, damages, actions and causes of action of any kind whatsoever,

11

whether known or unknown, arising under any provision of law to challenge judicially MTC’s development, preparation and/or adoption of the 2005 RTP or its

12

EIR.

13 McMillan Decl. Ex. AA at 10-11. The agreement also had a general release of all claims “with

14 respect to, pertaining to or arising from the facts of the lawsuit,” and a waiver of California Civil

15 Code § 1542. See id. at 11. CBE, however, points to the paragraph after the release in the

16 settlement agreement in which CBE does not waive “any rights to contest in a court of law any

17 matters outside the scope of the Agreement.” McMillan Decl. Ex. AA at 11.

18

In this case, CBE alleges in the complaint that it was harmed through the use of the RTP by

19 failing to cover the operating shortfall of AC Transit in the 2005 RTP. See Second Am. Compl. at 2,

20 12, 14, 16. Defendant construes the settlement releases broadly, while CBE attempts to construe

21 them narrowly. It appears that most, if not all, of CBE’s claims are barred by this settlement

22 agreement. However, the parties did not address all the permutations of this defense against CBE,

23 so the Court cannot definitively rule out any possibility that this plaintiff has the ability to pursue

24 some aspect of Plaintiffs’ case. At the summary judgment hearing, the Court ordered the parties to

25 meet and confer to determine whether they could reach agreement on this issue. The Court awaits

26 the results.

27 3. 28

Plaintiffs’ Motion for Summary Adjudication and Defendant’s Motion for Summary Judgment

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1

Plaintiffs move for summary adjudication on a discrete issue: that they have established a

2 prima facie case of disparate impact discrimination arising out of Defendant’s consistent practice of

3 failing to fund the operating shortfalls it identifies in the RTPs, while funding capital shortfalls,

4 thereby shifting the burden to Defendant to justify its funding decisions. In its cross-motion for

5 summary judgment on the merits of all of Plaintiffs’ claims, Defendant argues that summary

6 judgment should be granted on the grounds that Plaintiffs have not raised a triable issue of fact either

7 as to a prima facie case of disparate impact or as to intentional discrimination.

8

A. Private Right of Action to Enforce Government Code § 11135

9

Defendant raises the threshold issue of whether Plaintiffs can bring a private action under

10 California Government Code section 11135, the statute on which they base their disparate impact

11 claim. Government Code section 11135 is a state analogue to Title VI, 42 U.S.C. § 2000d, et seq.,

12 which prohibits discrimination in federally-funded programs. Section 11135(a) states:

13

(a) No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability,

14

be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted,

15

operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state. Notwithstanding Section

16

11000, this section applies to the California State University.

17 See also 22 Cal. Code Regs. § 98101(i)(1) ( prohibition against “in carrying out any program or

18 activity directly, or through contractual, licensing or other arrangements, on the basis of ethnic group

19 identification, religion, age, sex, color, or a physical or mental disability: . . . (i) to utilize criteria or

20 methods of administration that: (1) have the purpose or effect of subjecting a person to

21 discrimination on the basis of ethnic group identification, religion, age, sex, color, or a physical or

22 mental disability. . . .”). Without citing any specific authority on point, Defendant argues that

23 because there is no private right of action to enforce disparate impact regulations under Title VI,

24 there is similarly no private right of action under section 11135. See Alexander v. Sandoval, 532

25 U.S. 275, 280-81 (2001) (holding that there is no private right of action to enforce disparate impact

26 regulations promulgated under Title VI).

27

However, the California statute and the regulations which implement it differ in an essential

28 way from Title VI. Although violation of the state implementing regulation, California Code of

19

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1 Regulations section 98101(i)(1), may be addressed by mandatory remedial action by a state agency

2 under section 98110, the statutory scheme itself expressly provides a private right of action: “This

3 article and regulations adopted pursuant to this article may be enforced by a civil action for equitable

4 relief.” Cal. Gov’t Code § 11139; see also Blumhorst v. Jewish Family Servs. of Los Angeles, 126

5 Cal.App.4th 993, 1002 (2005) (stating that: “the Legislature did create a private cause of action for

6 civil rights discrimination by the amendments to section 11139. . . .”). Defendant has pointed to no

7 federal analogue to section 11139, so the reasoning of Sandoval is not applicable to private

8 enforcement of California’s disparate impact regulations.

9

Moreover, Plaintiffs have established that Defendant is a recipient of state funds for purposes

10 of Government Code section 11135. “[I]t is a discriminatory practice for a recipient, in carrying out

11 any program or activity directly, or through . . . other arrangements . . . to utilize criteria or methods

12 of administration that . . . have the purpose or effect of subjecting a person to discrimination on the

13 basis of ethnic group identification.” 22 Cal. Code. Regs. § 98101. “Program or activity” includes

14 “any project, action or procedure undertaken directly by recipients of state support. . . .” 22 Cal.

15 Code Regs. § 98010. Therefore, a recipient of state support may not discriminate in any of its

16 activities. This conclusion is reinforced by the legislative history of § 11139, in which the

17 Legislature stated its understanding that § 11135 extends to “entities undertaking programs or

18 activities that are funded directly by the state, and entities that receive financial assistance from the

19 state.” See Marcantonio Opp. Decl. Ex. 82 at 6.

20

Further, Plaintiffs have shown that Defendant’s funding and planning process constitutes a

21 program or activity for purposes of section 11135. California regulations provide that a program or

22 activity is state-supported if it receives state support either in whole or in part. See 22 Cal. Code

23 Regs. § 98010. Defendant has not pointed to any requirement that the program or activity must be

24 completely state funded, or that section 11135 reaches only the discriminatory allocation of state

25 transportation funds. Although Defendant’s activities do not fall squarely within the list of

26 exemplary programs or activities in section 98010, those examples are expressly not exclusive. To

27 the extent that Defendant’s conduct comes within the definition of program or activity, it is acting

28 with the “aid of state support” because the planning budget includes state funding.

20

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1

B. Disparate impact

2

Plaintiffs argue that they are entitled to summary adjudication that they have established a

3 prima facie case of disparate impact discrimination. A prima facie case of disparate impact

4 discrimination requires proof of:

5

‘(1) the occurrence of certain outwardly neutral practices, and (2) a significantly adverse or disproportionate impact on persons of a particular type produced by the

6

defendant's facially neutral acts or practices.’

7 Gamble v. City of Escondido, 104 F.3d 300, 306 (9th Cir. 1997) (quoting Pfaff v. U.S. Dep’t of

8 Housing and Urban Development, 88 F.3d 739, 745 (9th Cir. 1996)) (construing the Fair Housing

9 Act).

10

i. Facially neutral policy

11

One of Defendant’s most significant responsibilities is to prepare the region’s RTP. 34

12 U.S.C. § 134(c)(1) (“To accomplish the objectives in subsection (a), metropolitan planning

13 organizations designated under subsection (d), in cooperation with the State and public

14 transportation operators, shall develop long-range transportation plans and transportation

15 improvement programs for metropolitan planning areas of the State.”). The RTP must contain “[a]

16 financial plan that demonstrates how the adopted transportation plan can be implemented, indicates

17 resources from public and private sources that are reasonably expected to be made available to carry

18 out the plan, and recommends any additional financing strategies for needed projects and programs.

19 23 U.S.C. § 134(i)(2)(C). Congress requires RTPs to be fiscally constrained, in the sense that

20 Defendant may not include in an RTP any project or program that costs more than can be funded out

21 of reasonably anticipated revenues. See Marcantonio Decl. Ex. 7 at MTCP062960-61; Ex. 43 at 46-

22 47. Further, the RTP must emphasize preservation of the existing transportation system. See 23

23 U.S.C. § 134(h)(1)(H).

24

It is undisputed that Defendant follows a four-step funding procedure in the RTP. At step

25 one, Defendant “estimate[s] available revenues from all sources: Federal, state, regional, local.” See

26 Marcantonio Decl. Ex. 4 at 143:24-25. At step two, Defendant “assess[es] existing system needs of

27 the system that is on the ground both in terms of . . . operating, maintaining and sustaining.” See id.

28 at 144:9-13. At step three, Defendant determines what funding sources are eligible for meeting the

21

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1 operation and maintenance needs, “taking into account eligibility restrictions on those funds. . . .”

2 See id. at 139:1-5. At step four, after applying all eligible funds to operations and maintenance of

3 the existing system, Defendant applies any excess Track 1, or uncommitted, funding to prior

4 committed projects or new projects in the long-range plan. See id. at 139:15-141:1.

5

Plaintiffs argue that pursuant to this facially neutral policy, Defendant discriminatorily failed

6 to cover AC Transit’s operating shortfalls in recent RTPs: $136.151 million in the 1998 RTP; $36.7

7 million in the 2001 RTP and $64.355 million in the 2005 RTP. See Marcantonio Decl. Ex. 22; see

8 also Rubin Decl. Ex. 2 at ¶ 95-98 (opining that the shortfall in 2005 is actually more than $500

9 million). This funding protocol is neutral on its face, thereby satisfying the first prong of Plaintiffs’

10 prima facie case.

11

ii. Adverse impact on AC Transit

12

Plaintiffs’ original analysis of disparate impact based on comparing only three operators --

13 AC Transit, BART and Caltrain -- is fundamentally flawed. Plaintiffs argued that the comparison is

14 apt because these three entities are all single mode operators that have operations in multiple

15 counties and together they account for 35% of all Bay Area transit riders. See Marcantonio Decl.

16 Ex. 20. The rationale is not persuasive, both because the three differ in important respects from each

17 other, and because Plaintiffs would ignore Defendant’s practice with respect to the other four transit

18 operators who serve the majority of riders. While the three operators Plaintiffs selected for

19 comparison are all single mode, each operate a quite different mode of transit, with quite distinct

20 capital and operating needs. While BART’s geographic area encompasses AC Transit’s, it extends

21 well beyond Alameda and Contra Costa County and relies on highly capital-intensive, partially

22 underground, heavy rail. Caltrain also operates a completely different type of transportation, capital-

23 intensive above ground trains, mostly in a different geographic area than AC Transit. See New York

24 Urban League v. State of New York, 71 F.3d 1031, 1038 (2d Cir. 1991) (questioning whether two

25 “fundamentally different” transportation systems, the subway and the commuter rail lines in New

26 York City, could be adequately compared for purposes of disparate impact based on fare box

27 recovery ratios because the ratios do not take into account differing costs in operating the systems,

28 maintenance requirements, labor contracts, how they carry passengers, etc.). Also, as noted by

22

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1 Defendant, Caltrain only opened in 1992 and BART has added several lines to its service, including

2 lines into minority areas, while AC Transit’s service area has long remained the two counties of

3 Alameda and Contra Costa, and transbay service to San Francisco.

4

At the same time, other operators that Plaintiffs excluded from their original comparison are

5 more comparable to AC Transit in certain respects. For example, Golden Gate Transit operates a

6 bus system, the same mode as AC Transit, as well as a ferry system that, similar to AC Transit’s

7 transbay buses, carries passengers across the bay into San Francisco.

8

In their reply brief, Plaintiffs set forth a more appropriate analysis of disparate impact based

9 on a comparison of the top seven regional operators, which together account for approximately 95%

10 of all public transit trips in the Bay Area. Defendant has not raised any persuasive argument that

11 this comparison is invalid, as it includes the operators who account for almost all the transit trips in

12 the Bay Area, while excluding only the very small operators who collectively account for just 5% of

13 trips.

14

A statistical measurement of impact may be, but is not necessarily, sufficient to show adverse

15 impact. See Gamble, 104 F.3d at 306 (holding that the plaintiff failed to establish a prima facie case

16 for disparate impact because “he has presented no statistics or other proof demonstrating that the

17 City’s permit practices have a significantly adverse or disproportionate impact on the physically

18 disabled or elderly.”) (emphasis added); Larry P., 793 F.2d at 983 (without requiring statistical

19 proof, “the district court found that improper placement in E.M.R. [educable mentally retarded]

20 classes has a definite adverse effect, in that E.M.R. classes are dead-end classes which de-emphasize

21 academic skills and stigmatize children improperly placed in them.”); cf. South Bronx Coalition for

22 Clean Air v. Conroy, 20 F. Supp. 2d 565, 572-73 (S.D. N.Y. 1998) (“disparate impact under Title VI

23 requires ‘a reliable indicator of disparate impact’ and ‘an appropriate statistical measure’ that takes

24 into account all relevant bases of comparison) (quoting New York Urban League, Inc. v. State of

25 New York, 71 F.3d 1031, 1038 (2d Cir.1995)); New York City Envir. Justice Alliance v. Giulliani,

26 214 F.3d 65 (2d Cir. 2000) (plaintiffs required to employ facts and statistics that “adequately

27 captured” the impact of the City’s plans on the protected group); Ram v. New Mexico Dep’t of the

28 Environment, 2006 U.S. Dist. LEXIS 95369, *38-39 (D. N.M. 2006) (“The Supreme Court has held

23

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1 that statistical evidence alone is sufficient to establish a prima facie case of disparate impact

2 discrimination. [citation omitted]. Statistics are not irrefutable, however, and any proffered statistical

3 analysis ‘must involve the appropriate comparables, and must “cross a threshold of reliability before

4 it can establish even a prima facie case of disparate impact.”’ [citation omitted].”). Plaintiffs argue

5 that they have provided three meaningful measurements of adverse impact: (1) operating shortfalls;

6 (2) percentage of total shortfall that Defendant funds in the RTPs; and (3) service level reductions.

7 See Pls.’ Reply at 31.

8

With respect to operating shortfalls, Plaintiffs’ expert opines that “the existence and size of a

9 present or forecasted operating shortfall is both an excellent indicator of whether an operator will be

10 able to continue to provide its existing level of service, and a useful measure of the degree to which

11 it will be forced to cut existing service.” See Rubin Decl. Ex. 2 at ¶ 94; see also id. at ¶¶ 90-93.

12 “Unrelieved capital rehabilitation shortfalls are unlikely to have an immediate significant impact on

13 the existing system, whereas unrelieved operating shortfalls pose serious and immediate threats to

14 the existing system in the form of service cuts, fare increases, and other impacts on the quantity and

15 quality of transit services provided.” Id. at ¶ 24. Plaintiffs also note that of the seven major

16 operators, the high-minority operators (defined by Plaintiffs as over 70% minority ridership) suffer

17 greater operating shortfalls than the lower-minority operators (defined by Plaintiffs as 60% or less

18 minority ridership), both as a percentage of total operating budget and on a per rider basis.

19 Specifically, as a percentage of budget, AC Transit had a higher operating shortfall (7.91%) than any

20 of the lower-minority operators, which had operating shortfalls as follows: Golden Gate Transit

21 (4.57%), MUNI (3.78%), Caltrain (1.05%) and BART (0%). See Rubin Decl. Ex. 2 at ¶ 101(a); Ex.

22 F. On a per rider basis, AC Transit had a higher operating shortfall per rider ($0.60) than any of the

23 lower-minority operators ($0.13 for Caltrain and MUNI, $0.09 for Golden Gate Transit, $0.00 for

24 BART). See id. at ¶ 101(b); Ex. G.

25

With respect to percentage of total shortfall funded by Defendant in the RTP, Plaintiffs’

26 expert opines that because both operating and capital funds are needed to maintain existing service,

27 “the degree to which MTC covers operating and capital rehabilitation shortfalls in the RTP process

28 measures the amount of assistance MTC provides to operators to enable them to continue to operate

24

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1 and maintain the existing system.” Rubin Decl. Ex. 2 at ¶ 94. Mr. Rubin concluded that Defendant

2 covered a lower percentage of AC Transit’s total shortfall (operating and capital rehabilitation) than

3 that of any of the low-minority operators whose shortfalls AC Transit helped to cover. See Rubin

4 Decl. Ex. 2 at ¶ 102. Specifically, Mr. Rubin determined that while Defendant covered 14.02 % of

5 total shortfall for AC Transit, it covered 43.61% of BART’s total shortfall and 16.37% of Golden

6 Gate Transit’s total shortfall. See id. Ex. 2 at Ex. H. Mr. Rubin’s report also shows that Defendant

7 did not cover any of the total shortfall for high-minority operators Samtrans and VTA. Id.

8

Plaintiffs argue that Defendant could allocate additional funding to AC Transit at the final

9 step of the funding process to cover the operating shortfalls, but chooses not to. However, the extent

10 to which Defendant has the ability to apply additional Track 1 uncommitted funding to AC Transit’s

11 operating shortfalls is sharply disputed. The parties agree that the major sources of Track 1

12 uncommitted funding at Step 4 are Congestion Mitigation and Air Quality (“CMAQ”) funds,

13 Surface Transportation Program (“STP”) funds and State Transportation Improvement Program

14 (“STIP/RTIP”) funds.

15

For example, the purpose of the CMAQ program “is to fund transportation projects or

16 programs that will contribute to attainment or maintenance of the national ambient air quality

17 standards (NAAQS) for ozone, carbon monoxide (CO) and particulate matter (PM).” Publication of

18 Interim Guidance on the Congestion Mitigation and Air Quality Improvement (CMAQ) Program, 71

19 Fed. Reg. 76038, 76039 (Dec. 19. 2006). Guidelines for project eligibility for CMAQ funds include:

20

1. Capital Investment

21

CMAQ funds may be used to establish new or expanded transportation projects or programs that reduce emissions, including capital investments in transportation

22

infrastructure, congestion relief efforts, diesel engine retrofits, or other capital projects.

23

2. Operating Assistance

24

There are several general conditions that must be met for operating assistance to be

25

eligible under the CMAQ program. a. Operating assistance is limited to new transit services, intermodal facilities, and

26

travel demand management strategies (including traffic operation centers); and the incremental cost of expanding existing transit services.

27

b. In using CMAQ funds for operating assistance, the intent is to help start up viable new transportation services that can demonstrate air quality benefits and eventually

28

cover their costs as much as possible. Other funding sources should supplement and ultimately replace CMAQ funds for operating assistance, as these projects no longer

25

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1

represent additional, net air quality benefits but have become part of the baseline transportation network.

2

c. Operating assistance includes all costs of providing new transportation services, including, but not limited to, labor, fuel, administrative costs, and maintenance.

3

d. When CMAQ funds are used for operating assistance, non-Federal share requirements still apply.

4

e. With the focus on start-up costs only, operating assistance under the CMAQ program is limited to three years. The provisions in 23 U.S.C. § 116 place

5

responsibilities for maintenance on States. Since facility maintenance is akin to operations, three years of CMAQ assistance provides adequate incentive and

6

flexibility while not creating a pattern of excessive or even perpetual support. Exceptions are listed below under VII.D.7 Travel Demand Management, VII.D.8

7

Public Education, and VII.D.10 Carpooling and Vanpooling.

8 71 Fed. Reg. at 76042. Although CMAQ funds are generally earmarked for capital purposes, the

9 funds can be used for operating expenses under certain circumstances, but only for a three-year

10 period. The parties do not dispute the purposes of CMAQ funds and Defendant’s ability to use

11 CMAQ funds for the operation of new service for the first three years. The remaining evidence

12 about these funds, however, establishes a triable issue of fact as to whether these funds can be

13 allocated by Defendant to operating shortfalls in the RTP.

14

Ms. McMillan testified that CMAQ funds “are oriented mainly toward capital projects that

15 either enhance air quality in some fashion, i.e., serve to reduce emissions of some sort or fashion,

16 pollutant emissions, or go toward mitigating congestion.” Declaration of Kimon Manolius in

17 Support of Defs.’ Opp’n to Pls.’ Mot. for Summ. Adjudication Ex. A at 338:4-7. As stated in the

18 regulations, Ms. McMillan testified that CMAQ funds can only be used for operations for the start-

19 up of new service and only for three years; specifically, the funds cannot be used “to sustain an

20 existing level of service,” but must be used for a “net increase in service provided.” See id. at 338:8-

21 19. Plaintiffs’ expert, Thomas Rubin, testified similarly: “CMAQ can [be used for operations] but

22 only in a very specific instance and that of new service.” Declaration of Julia Veit Ex. B at 86:14-

23 15; id. at 130:8-12 (“And with that one exception for new transit service for CMAQ only, CMAQ . .

24 . cannot be used for operations, but they can be used for virtually any type of transit capital.”). Mr.

25 Rubin also stated that his “best recollection is that if you want to use CMAQ funds for operations,

26 you do have to jump through extra hoops to do it. And as I mentioned, there are some very specific

27 requirements: Has to be new service, and you have to show that there is an air quality impact in

28 particular. Those are not the only ones, but those are the two in particular that they want to see that

26

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1 there’s some justification for using these funds for those purposes.” Veit Decl. Ex. B at 139:5-13.

2

At the same time, however, Mr. Rubin stated in his report that CMAQ funds can be used for

3 transit operations in other ways, by transferring them pursuant to 23 U.S.C. § 104(k) or “. . . by

4 using CMAQ for the Federal share of the replacement cost of vehicles, rather than using § 5307

5 funds, thus freeing up § 5307 funds for preventative maintenance uses.” Rubin Decl. Ex. 1 at ¶ 137.

6 According to Mr. Rubin, preventative maintenance is an operating expense, and there is no ceiling

7 on the amount of § 5307 funds which may be used for preventative maintenance. See Rubin Decl.

8 Ex. 1 at ¶¶ 87, 120. There is evidence, however, that such a transfer of funds may no longer be

9 permitted. Ms. McMillan testified that: “. . . [I]n the early ‘90s when [the Intermodal Surface

10 Transportation Efficiency Act of 1991] was established, the enabling legislation on CMAQ was

11 vague enough that we were able, and a few other entities were able, to make the case that

12 maintenance and rehab contributed to air quality reduction. With TEA-21 [Transportation Equity

13 Act for the 21st Century], the subsequent authorization, they cleaned up the language to clearly

14 prohibit the use for those purposes, and that was carried over with SAFETEA [Safe, Accountable,

15 Flexible, and Efficient Transportation Equity Act of 2003].” Manolius Decl. in Support of Defs.’

16 Opp’n to Pls.’ Mot. for Summ. Adjudication Ex. A at 339:23-340:5. Accordingly, there is a triable

17 issue of fact as to whether CMAQ funds can be allocated to operating shortfalls in the RTP.

18

Similarly, there is a triable issue of fact as to whether STP funds can be used for operating

19 expenses. Mr. Rubin testified in his deposition that STP funds cannot be used for operations. See

20 Veit Decl. Ex. B at 86:13-14 (“Basically, STP cannot directly be used for operations, transit

21 operations.”); id. at 130:9-11 (“. . . STP cannot be used for operations, but they can be used for

22 virtually any type of transit capital.”). However, Plaintiffs argue that under Mr. Rubin’s transfer or

23 exchange theory, like that described above with respect to CMAQ funds, STP funds can be used for

24 operating expenses. See id. at 130:13-17 (“By taking 10 million of your 25 million in 5307 and

25 using that for operations and then backfilling that 10 million from CMAQ or STP, you now have 10

26 million for operations which is what you need, and you have 25 million for capital, which is what

27 you need.”). The funding statute permits use of STP funds for numerous projects, but only one

28 related to transit projects: “[c]apital costs for transit projects eligible for assistance under chapter 53

27

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United States District Court For the Northern District of California

1 of title 49, including vehicles and facilities, whether publicly or privately owned, that are used to

2 provide intercity passenger service by bus.” 23 U.S.C. § 133(b)(2); see also Def.’s Post-Hearing

3 Submission Ex. D (FHWA and FTA Funds That May Be Used For Either Highway or Transit

4 Purposes, www.fhwa.dot.gov/hep/flexfdtable.htm) (stating that the primary purpose of STP funds is

5 “[C]onstruction, reconstruction, rehabilitation, resurfacing, restoration, and operational

6 improvements for highways and bridges including construction or reconstruction necessary to

7 accommodate other transportation modes,” and that eligible projects include “[c]apital costs of

8 transit projects . . . including vehicles and facilities, publicly or privately owned, that are used to

9 provide intercity bus service.”). It is undisputed that STP funds can be used for capital purposes, but

10 Mr. Rubin opines that Defendant can transfer STP funds for use as preventative maintenance

11 operating funds and can exchange STP funds for operating funds under its STP Reimbursement

12 Exchange program. See Rubin Decl. Ex. 1 ¶¶ 134-39 (stating that “STP funds are limited to capital

13 projects, but may be used for almost any capital need, including rehabilitation or expansion, for any

14 mode of surface transportation.”). Mr. Rubin also states that use of STP funds for preventative

15 maintenance, an operating expense, is permissible, but that Defendant has not exercised this option

16 with respect to AC Transit, while it has done so in connection with BART. Specifically, Mr. Rubin

17 states that in connection with future BART car replacement capital expenses, Defendant adopted

18 Resolution 3738, in which Defendant agreed to provide BART with current STP funds for

19 preventative maintenance, and in exchange, BART would deposit an equal amount of local funds to

20 account for future car replacement needs. See Rubin Decl. Ex. 1 at ¶ 139. This exchange enabled

21 Defendant to allocate current STP funds that could not have otherwise been used for future car

22 replacement because there is a time limit on their use (Cal. Streets & Highways Code § 182.6(b)),

23 and allowed BART to use local funds, which do not expire, for future capital expenses. See id.

24

Ms. McMillan, however, testified that while STP funds “are the most flexible of the federal

25 flexible funds in some respect” in that the funds can be used “for almost any conceivable capital

26 need . . . ,” the funds cannot be used for operations and are “capital limited.” Manolius Decl. in

27 Support of Defs.’ Opp’n to Pls.’ Mot. for Summ. Adjudication Ex. A at 359:14-25. Therefore, there

28 is a triable issue of fact as to whether Defendant can use STP funds through transfer or exchange to

28

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United States District Court For the Northern District of California

1 cover operating shortfalls in the RTPs.

2

There is also a triable issue of fact as to whether STIP/RTIP funds could be allocated to

3 cover operating shortfalls in the RTP. The STIP is the Transportation Capital Program developed at

4 the state level, which extends authority to regions to establish their programming priorities. See

5 Manolius Decl. in Support of Defs.’ Opp’n to Pls.’ Mot. for Summ. Adjudication Ex. A at 64:11-16.

6 The RTIP is Defendant’s submission to the state for the STIP. See id. at 67:11-13; see also Cal.

7 Gov’t Code § 14527(a) (“After consulting with the department, the regional transportation planning

8 agencies and county transportation commissions shall adopt and submit to the commission and the

9 department, not later than December 15, 2001 and December 15 of each odd-numbered year

10 thereafter, a five-year regional transportation improvement program. . . ,” which shall include all

11 projects to be funded with regional improvement funds for capital expenses under California Streets

12 & Highways Code § 164(a).). It is not clear that these funds could be applied to operating shortfalls.

13 Alix Bockelman, Defendant’s Director of Programming and Allocations, testified that “[w]hile MTC

14 approves the RTIP in its entirety as well as the final approval rests with the California

15 Transportation Commission, which is a statewide commission. However, over the last many cycles,

16 the CMAs [Congestion Management Agencies] have had the primary responsibility for selecting

17 projects within their county share.” Manolius Decl. in Support of Defs.’ Opp’n to Pls.’ Mot. for

18 Summ. Adjudication Ex. B at 55:21-56:1. Further, Ms. Bockelman also testified that “transit

19 operating isn’t an eligible use of RTIP funds.” Def.’s Post-Hearing Submission Ex. L at 504:4-5. In

20 addition, Ms. McMillan testified that “RTIP is capital only.” Id. at Ex. M at 683:25. Plaintiffs’

21 expert, Mr. Rubin, also states that RTIP funds are “primarily capital. There are some ways that you

22 can get a little bit of operations in there. But they are primarily capital.” Veit Decl. Ex. B at 270:21-

23 23.

24

Mr. Rubin opines, however, that Defendant could use STIP/RTIP funds in a manner that

25 indirectly defrays transit operating shortfalls. Specifically, Mr. Rubin opines that: “These provisions

26 [regarding STIP/RTIP] allows MTC, should it so desire, to use such funds for AC Transit capital

27 purposes, thereby replacing other funds that can be shifted to operating subsidies, and to capitalize

28 certain operating expenses.” Rubin Decl. Ex. 1 at Ex. C at 19.

29

Case3:05-cv-01597-EDL Document258 Filed08/21/08 Page30 of 36

United States District Court For the Northern District of California

1

Also, the extent to which Defendant may redirect to AC Transit additional federal funds

2 flowing primarily from 49 U.S.C. §§ 5307 and 5309 is unclear, but appears limited at best. See

3 McMillan Decl. ¶ 15 (Federal Transportation Agency administers these funds and distributes them

4 based on urbanized areas defined by census data). For example, of the three types of § 5309 funds --

5 Fixed Gateway Modernization (designated for rail and ferry or for bus systems to operate in

6 dedicated HOV lanes), New Starts (dedicated to new starts of rail or bus rapid transit projects as

7 determined by Congress), and Bus Discretionary (for bus and bus facilities) -- AC Transit did not

8 submit eligible projects for the first two types of funding for the period from 1998 through 2006.

9 See id. at ¶¶ 16, 18. During that period, AC Transit requested Bus Discretionary funds, and

10 Defendant awarded AC Transit $5.4 million, nearly as much as the allocation to BART for its

11 congressional earmarked project. See id. Mr. Rubin, however, opines these federal funds can be

12 used in combination with other funds as described above, to cover operating shortfalls.

13

With respect to service cuts as a measure of adverse impact, Plaintiffs’ expert opines that the

14 “most meaningful measure of the amount of service that a transit agency provides to transit riders is

15 ‘Vehicle Revenue Miles’ (VRMi),” which measure the “miles that vehicles actually travel while in

16 revenue [i.e., passenger] service.” Rubin Decl. Ex. 1 at ¶ 102 (opining that VRMi is a more

17 meaningful measure than Vehicle Revenue Hours because “people ride public transportation to get

18 from one place to another, not to find ways to spend time, and so the metric that captures the

19 distance traveled more closely reflects the purpose for which public transit exists (transit users board

20 buses and trains to ride X miles, not to ride for Y minutes).” According to Plaintiffs’ expert, over

21 the period from 1995 to 2006, the actual Vehicle Revenue Miles for AC Transit only increased

22 12.6%, while the actual Vehicle Revenue Miles for all other operators increased 26.8%, a growth

23 rate of 113% higher than that of AC Transit. In looking at only the years 2002 to the present,

24 Plaintiffs’ expert states that AC Transit has experienced real declines of 10%, while BART and

25 Caltrain riders had increases of 4% and 27%, respectively. Rubin Decl. Ex. 2 at ¶ 152. Responding

26 to Defendant’s expert’s analysis of the 1995-2005 time period, Plaintiffs’ expert states that during

27 that longer time frame, motor bus vehicle revenue miles declined by 3%, while BART’s heavy rail

28 vehicle revenue miles increased by 36.9% and Caltrain’s commuter rail vehicle revenue miles

30

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United States District Court For the Northern District of California

1 increased by 61.8%. Rubin Decl. Ex. 2 at ¶ 155.

2

Even assuming that Plaintiffs’ expert is correct, there is a triable issue of fact as to causation

3 for purposes of Plaintiffs’ disparate impact analysis for the same reasons set forth above in the

4 discussion of standing. For example, as described above, Defendant introduced evidence that when

5 AC Transit experienced actual, as opposed to projected, operating shortfalls, Defendant approved

6 every request since 1999 from AC Transit for operating assistance in the form of preventative

7 maintenance funds. Thus, projected operating shortfalls do not necessarily result in the same

8 amount of actual shortfalls. Further, Defendant’s expert opined that: “If local transit operators need

9 more funding and refuse to cut services, the onus lies on them and the residents they serve to provide

10 supplemental funds, as has been the case in the past with voter-approved permanent sales tax

11 referenda in Santa Clara and San Mateo Counties.” See Declaration of Robert Cervero Ex. 1 at 5.

12 In addition, Defendant has provided evidence that past service difficulties were due to the recession,

13 not necessarily to projected operating shortfalls. See Declaration of Nancy Skowbo at ¶ 7, Ex. D

14 (AC Transit short range plan stating that the economic downturn has had a negative effect on

15 funding); McMillan Decl. Ex. Z (Resolution 3525 stating that the economic slump has battered

16 transit operating revenues causing transit operators to confront cost-cutting measures).

17

iii. Disproportionate impact on minorities

18

To show a potentially illegal disproportionate effect, Plaintiffs must also establish that the

19 adverse effects of Defendant’s conduct will be suffered disproportionately by the minority group.

20 See Keith v. Volpe, 858 F.2d 467, 484 (9th Cir. 1988) (stating that of the persons who would benefit

21 from the housing project because they are low-income, two-thirds were minorities, so the failure to

22 build the housing had twice the adverse impact on minorities as on whites); Garcia v. Spun Steak

23 Co., 998 F.2d 1480, 1486 (9th Cir. 1993) (to show disparate impact, the plaintiffs must show, inter

24 alia, that the employee population in general was not affected by the English-only policy to the same

25 degree as the protected group; there, the vast majority of employees who speak another language are

26 Hispanic and so Hispanics would be disproportionately affected by the English-only policy).

27 Relying on Keith and Garcia, Plaintiffs argue that disproportionality is established by comparing the

28 percentage of minorities in the population of the adversely affected entity to that of the other entities.

31

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United States District Court For the Northern District of California

1 Specifically, Plaintiffs argue that minorities are disproportionately impacted by Defendant’s practice

2 of failing to fund operating shortfalls in the RTPs because 78% of the ridership of AC Transit is

3 minority, compared to only 53% of BART and 50% of Caltrain. Defendant points to the undisputed

4 fact that, as an absolute number, more minorities ride BART and Caltrain than AC Transit. See

5 Declaration of Stefan Boedecker Ex. B at ¶ 17-18 (BART’s share of weekly minority riders is

6 56.5%, Caltrain’s is 4.8% and AC Transit’s is 38.7%, therefore, BART, not AC Transit, carries the

7 most minority riders). Expanding the analysis to the top seven operators reveals two operators

8 which each have a minority ridership of 70%, VTA and Samtrans, as well as two others with a lower

9 percentage of minorities.

10

Comparing percentages can be an adequate method to show disparate impact. See, e.g.,

11 Powell v. Ridge,189 F.3d 387, 394 (3d Cir. 1999) (overruled on other grounds by Alexander v.

12 Sandoval, 532 U.S. 275 (2001) (finding that plaintiffs stated a claim for disparate impact by alleging

13 that school districts with higher proportions of minority students received less revenue than those

14 with higher proportions of white students). However, when the comparison is not confined to the

15 unduly narrow subset of only three operators but extended to the top seven, it is not clear that the

16 disparity in percentages is sufficient to establish this element of disparate impact beyond a triable

17 issue of fact, particularly in light of the relatively large percentages, and even larger absolute

18 numbers, of minorities who benefit from the allegedly favorable treatment of operators like BART.

19 And even if disparate impact were clear, the issue of causation presents a triable issue of fact.

20

C. Discriminatory intent

21

Plaintiffs also sue for intentional discrimination under Title VII. See Alexander v. Sandoval,

22 532 U.S. 275 (2001). “To prevail on a Title VI claim . . . a plaintiff must prove (1) that he is an

23 “intended beneficiary of the federally-funded program the defendants ... participated in,” [citations

24 omitted], and (2) that the defendant intentionally discriminated against him in violation of the

25 statute.” The Epileptic Foundation v. City and County of Maui, 300 F. Supp. 2d 1033, 1011 (D.

26 Haw. 2003).

27

Defendant moves for summary judgment on the ground that Plaintiffs have not presented

28 sufficient evidence of intentional discrimination to raise a triable issue of fact. As described above,

32

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United States District Court For the Northern District of California

1 Defendant has produced evidence that it has no authority to redirect earmarked federal funds, and

2 that it has provided preventative maintenance funding to AC Transit to use for operating expenses

3 whenever AC Transit sought such funding.

4

Plaintiffs concede that they have no evidence of direct discriminatory intent, but argue that

5 the totality of the circumstances shown by Plaintiffs’ indirect evidence (see Arlington Heights v.

6 Metro. Housing Dev. Corp., 429 U.S. 252, 266 (1977)), shows a triable issue of fact. In Arlington

7 Heights, the Court included a non-exhaustive list of illustrative subjects for courts to consider in

8 determining whether discriminatory intent existed:

9

The impact of the official action whether it ‘bears more heavily on one race than another,’ [citation omitted] may provide an important starting point. Sometimes a

10

clear pattern, unexplainable on grounds other than race, emerges from the effect of the state action even when the governing legislation appears neutral on its face. The

11

evidentiary inquiry is then relatively easy. But such cases are rare. Absent a pattern as stark as that in Gomillion or Yick Wo, impact alone is not determinative and the

12

Court must look to other evidence. The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for

13

invidious purposes. . . . The specific sequence of events leading up the challenged decision also may shed some light on the decisionmaker’s purposes. . . . Substantive

14

departures too may be relevant, particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached.

15

. . . The legislative or administrative history may be highly relevant, especially where there are contemporary statements by members of the decisionmaking body, minutes

16

of its meetings, or reports.

17 Arlington Heights, 429 U.S. at 266 (footnotes and citations omitted); see also Reeves v. Sanderson

18 Plumbing Prods., 530 U.S. 133, 147 (2000) (stating in an age discrimination case that: “Proof that

19 the defendant’s explanation is unworthy of credence is simply one form of circumstantial evidence

20 that is probative of intentional discrimination, and it may be quite persuasive.”) (citation omitted);

21 Diaz v. San Jose Unified Sch. Dist., 733 F.2d 660, 665, 674 (9th Cir. 1984).

22

Plaintiffs argue that they have introduced evidence of the factors potentially indicative of

23 intentional discrimination set forth in Arlington Heights, raising a triable issue of fact as to

24 discriminatory intent. Specifically, Plaintiffs argue that they have provided expert testimony and

25 evidence regarding the “important starting point” from Arlington Heights, that is, the discriminatory

26 effect of Defendant’s actions. See, e.g., Sanchez Decl. Ex. 1 at 96-97 (Defendant was aware at least

27 as early as mid-1990s that AC Transit carried significantly greater percentage of minorities);

28 Marcantonio Opp. Decl. Ex. 2 at 104-06 (MTC current director aware since 1993 that AC Transit

33

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United States District Court For the Northern District of California

1 carried more minority passengers), Ex. 66 (in 1993, AC Transit’s percentage of white passengers

2 was 32%); Ex. 65 (in 1998, AC Transit’s percentage of white passengers was 24%). Plaintiffs also

3 argue that they have shown the historical background of inadequate funding. See, e.g., Marcantonio

4 Opp. Decl. Ex. 38 at 2 (“BART has not required MTC-allocated operating funds because legislation

5 sponsored by MTS in 1977 in cooperation with BART, AC Transit and San Francisco directly

6 allocated three fourths of a ½ cent sales tax in Alameda, Contra Costa, and San Francisco counties to

7 BART. As shown on page 9 of the BART packet - this produced $108.5 million for BART in 1994.

8 Follow up legislation sponsored by MTC in 1979 secured the remaining one-fourth of the sales tax

9 revenue for AC Transit and SF Muni based on MTC’s allocation. The calculations jointly developed

10 then assumed AC Transit and SF Muni would have access to TDA and FTA section 9 - the other

11 significant regional revenues. Since then, these revenues have declined compared to AC Transit

12 and SF Muni budgets causing them to curtail services and raise fares.”); Rubin Decl. Ex. 2 at ¶¶ 95-

13 98 (Defendant failed to take into account service cuts at AC Transit in the 2005 RTP baseline,

14 thereby understating the shortfall by $500 million).

15

Plaintiffs contend further that they have provided evidence that Defendant departed from

16 substantive norms and mandatory policy by failing to preserve the existing bus service and

17 prioritizing rail expansion over expansion of Lifeline bus services. See Marcantonio Opp. Decl. Ex.

18 14, 15, 16. Finally, Plaintiffs argue that there are several incidents showing that Defendant has

19 covered up its discrimination and departed from acknowledged procedural norms by, for example,

20 not providing minority participants with the information and analysis necessary to meaningfully

21 participate in the decision-making process. See Sanchez Decl. Ex. 1 at 5; Marcantonio Opp. Decl.

22 Ex. 53 at MTCP 257574. See, e.g., Marcantonio Opp. Decl. Ex. 73 at PL 005380 (letter from

23 pastors and associate ministers calling for equity in funding for bus services); Ex. 73 at MTCP

24 153451 (response from MTC saying that it intends to ensure that rail expansion does not come at

25 expense of minority bus service); Ex. 14 at 744-45 (stating that Resolution 3434 would apply to

26 MUNI and VTA, and possibly AC Transit).

27

Looking at the totality of the circumstances, however, the Court concludes that Plaintiffs

28 have not raised a triable issue of fact under Arlington Heights and its progeny. The circumstances

34

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United States District Court For the Northern District of California

1 include too many strong contraindications of discriminatory motive, that preclude drawing any

2 reasonable inference of discriminatory intent. Many have already been discussed above in the

3 context of the causation prong of standing and the analysis of disparate impact. Examples include

4 Defendant’s allocation of preventative maintenance funds to AC Transit to help with operating

5 expenses. See, e.g., McMillan Decl. ¶ 21, Ex. I ($49 million in preventative maintenance funds to

6 AC Transit in 200-01); ¶ 22, Ex. J at 5 ($10 million in preventative maintenance funds to AC Transit

7 in 2002-03); ¶ 44, Ex. CC at 4 ($17 million in preventative maintenance funds to AC Transit for

8 2003-04); ¶ 20, Ex. H at 5 ($13.7 million in preventative maintenance funds to AC Transit for 2005-

9 06).

10

Particularly inconsistent with any intent to discriminate on the basis of race and ethnicity is

11 Defendant’s treatment of the whitest of the seven major carriers, Golden Gate Transit, almost two-

12 thirds of whose passengers are white in a transit area that is majority minority.2 Facing steep

13 operating shortfalls in three RTPs in 1994, 1998 and 2005 (see Marcantonio Decl. Ex. 22), which

14 MTC did not cover, Golden Gate Transit cut its service by 35% and lost 21% of its ridership. See

15 Dehart Decl. ¶¶ 3-8. While Plaintiffs downplay the significance of Defendant’s treatment of Golden

16 Gate Transit as an “outlier,” that argument is more appropriately directed to the disparate impact

17 analysis, which looks at overall effect, not at motive. While the Court is cognizant that intentional

18 discrimination can be subtle and has not been eradicated from society, it would strain credulity to

19 infer that Defendant is motivated by racial discrimination to harm AC Transit’s minority riders by

20 not covering operating shortfalls, yet allows Golden Gate Transit’s largely white riders to suffer

21 steep cuts in service instead of covering its operating shortfalls.3 The totality of the circumstances

22 here thus differ very significantly from those in Diaz, where the governing agency consistently

23 chose discriminatory alternatives over non-discriminatory ones. See Diaz, 733 F.2d at 665, 674

24 (defendant school board “consistently selected the most segregative alternatives” whenever it had a

25

2

Indeed, Golden Gate Transit is the second most white of the twenty-one operators

26 analyzed in Defendant’s 2006 Demographic Survey. See Boedecker Decl. Ex. A at 10. Alameda Ferry

is the only entity with a higher percentage of white passengers. Id. 27

3

As calculated by Defendant’s expert, the percentage of total shortfalls (operating plus

28 capital rehabilitation) that Defendant covered is very similar: 14.37% of AC Transit’s and 16.37% of

Golden Gate Transit’s. See Rubin Decl. Ex. B at Ex. H.

35

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United States District Court For the Northern District of California

1 choice, completely disregarded state law requirements to take affirmative steps to desegregate its

2 schools, intentionally assigned faculty and staff to schools on the basis of race, and deviated from its

3 otherwise paramount neighborhood schools policy only to allow white students, but not minority

4 students, to transfer from overcrowded schools.). Accordingly, Plaintiffs have not raised a triable

5 issue of fact as to discriminatory intent.

6 CONCLUSION

7

Accordingly, Plaintiffs’ Motion for Summary Adjudication is denied. Defendants’ Motions

8 for Summary Judgment as to standing are denied. Defendant’s Motion for Summary Judgment on

9 the discrimination claims is granted as to intentional discrimination and denied as to disparate

10 impact.

11 IT IS SO ORDERED.

12 Dated: August 21, 2008 13

ELIZABETH D. LAPORTE United States Magistrate Judge

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

36

 
 Case3:05-cv-01597-EDL Document116 Filed02/23/07 Page1 of 5

1 BILL LANN LEE

KIMON MANOLIUS (State Bar No. 154971)

(State Bar No. 108452)

WARREN WEBSTER (State Bar No. 209540)

2 blee@lewisfeinberg.com

JULIA H. VEIT (State Bar No. 209207)

MARGARET HASSELMAN

KARIN M. ARNOLD (State Bar No. 228565)

3 (State Bar No. 228529)

HANSON BRIDGETT MARCUS

mhasselman@lewisfeinberg.com

VLAHOS & RUDY, LLP

4 LEWIS, FEINBERG, LEE,

425 Market Street, 26th Floor

RENAKER & JACKSON, P.C.

San Francisco, CA 94105

5 1330 Broadway, Suite 1800

Telephone: (415) 777-3200

Telephone: (510) 839-6824

Facsimile: (415) 541-9366

6 Facsimile: (510) 839-7839

FRANCIS F. CHIN (State Bar No. 059231)

7 KELLY DERMODY

CYNTHIA E. SEGAL (State Bar No. 179636)

(State Bar No. 171716)

METROPOLITAN TRANSPORTATION

8 DANIEL M. HUTCHINSON

COMMISSION

(State Bar No. 239458)

Joseph P. Bort Metrocenter

9 dhutchinson@lchb.com

101 8th Street

LIEFF, CABRASER, HEIMANN

Oakland, CA 94607-4700

10 & BERNSTEIN, LLP

Telephone: (510) 817-5700

Embarcadero Center West

Facsimile: (510) 817-5848

11 275 Battery Street, Suite 3000

San Francisco, CA 94111-3339

Attorneys for Defendant Metropolitan

12 Telephone: (415) 956-1000

Transportation Commission

Facsimile: (415) 956-1008

13

Attorneys for Plaintiffs Sylvia Darensburg,

14 Vivian Hain, and the Proposed Class; and

Plaintiff Communities for a Better

15 Environment

16 [Additional Plaintiffs’ counsel listed at end]
17

18

UNITED STATES DISTRICT COURT

19

NORTHERN DISTRICT OF CALIFORNIA

20

21 SYLVIA DARENSBURG, and VIVIAN HAIN, individuals on behalf of themselves
22 and all others similarly situated; AMALGAMATED TRANSIT UNION,
23 LOCAL 192; and COMMUNITIES FOR A BETTER ENVIRONMENT,
24 Plaintiffs,
25 v.
26 METROPOLITAN TRANSPORTATION COMMISSION,
27 Defendant.
28
STIPULATION & [PROPOSED] ORDER RE DISCOVERY AND CLASS CERTIFICATION
Case No. C-05-1597-EDL

Case No. C-05-1597-EDL
STIPULATION AND [PROPOSED] ORDER RE DISCOVERY AND CLASS CERTIFICATION

Case3:05-cv-01597-EDL Document116 Filed02/23/07 Page2 of 5

1

1. MTC will produce on a rolling basis, concluding no later than by March 5, 2007,

2 emails of Steve Heminger, Therese McMillan, Randy Rentschler, Doug Kimsey and Alix

3 Bockelman (hereafter "Senior Managers") using the first list of search terms transmitted by

4 Plaintiffs to MTC on February 5, 2007, and attached hereto as Exhibit A.

5

2. By February 16, 2007, Plaintiffs will, propose a narrowing of 12 search terms in the

6 second list of search terms transmitted by Plaintiffs on February 5, 2007, and attached hereto as

7 Exhibit B. As soon as Therese McMillian’s deposition transcript becomes available, MTC will

8 provide to Plaintiffs a list of the Senior Analysts in each of the three departments (Legislation and

9 Public Affairs, Planning and Programming and Allocations) (hereinafter "Senior Analysts").

10

3. MTC will use best efforts to supplement the email production in paragraph 1, above,

11 as soon as possible with emails of the identified Senior Analysts, using the first list of search

12 terms set forth in Exhibit A.

13

4. MTC will use best efforts to produce on a rolling basis as expeditiously as possible

14 emails of Senior Managers and Senior Analysts using the search terms in the second list (Exhibit

15 B), as narrowed in respect to 12 search terms pursuant to paragraph 2, above, and third lists of

16 search terms transmitted by Plaintiffs on February 5th. (The third list is attached hereto as

17 Exhibit C.)

18

5. With respect to other electronic documents, Plaintiffs provided MTC with an

19 alternative set of search terms on February 20, 2007. MTC will meet and confer with Plaintiffs to

20 narrow this list, if necessary, after MTC has run a subset of the proposed search terms on its

21 database to determine the frequency of hits. Once there is an agreed upon list of terms, MTC will

22 use best efforts to produce as expeditiously as possible those electronic documents that include

23 the agreed upon terms on a rolling basis.

24

6. On August 1, 2007, the parties will exchange expert reports bearing on class

25 certification.

26

7. On August 15, 2007, the parties will exchange expert reply reports bearing on class

27 certification.

28
STIPULATION & [PROPOSED] ORDER RE DISCOVERY AND CLASS CERTIFICATION
Case No. C-05-1597-EDL

- 1 -

Case3:05-cv-01597-EDL Document116 Filed02/23/07 Page3 of 5

1

8. On September 7, 2007, MTC will inform Plaintiffs if it is willing to stipulate to class

2 certification. If MTC so stipulates, the Court will schedule a case management conference to

3 establish the schedule for a summary judgment.

4

9. On October 2, 2007, if necessary, Plaintiffs will submit their motion for a class

5 certification, memorandum in support, and supporting materials. MTC may take depositions of

6 Plaintiffs’ expert witnesses who submit declarations in support of the motion during the week of

7 October 9, 2007.

8

10. On October 30, 2007, MTC will submit its response to the motion for class

9 certification. Plaintiffs may take depositions of MTC’s expert witnesses who submit declarations

10 in opposition to the motion during the week of November 5, 2007.

11

11. On November 20, 2007, Plaintiffs will submit their reply to MTC’s response.

12

12. The Court will hear the class certification motion on December 18, 2007.

13 Dated: February 21, 2007
14

LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.

15 16 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATION & [PROPOSED] ORDER RE DISCOVERY AND CLASS CERTIFICATION
Case No. C-05-1597-EDL

By: /s/ Bill Lann Lee Bill Lann Lee
Bill Lann Lee Margaret Hasselman LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 95612-2519 Telephone: (510) 839-6824 Facsimile: (510) 839-7839
Kelly Dermody Daniel M. Hutchinson LEIFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West 275 Battery Street, Suite 3000 San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Proposed Class; and Plaintiff Communities for a Better Environment
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
STIPULATION & [PROPOSED] ORDER RE DISCOVERY AND CLASS CERTIFICATION
Case No. C-05-1597-EDL

Peter D. Nussbaum Daniel T. Purtell Linda Lye ALTSHULER & BERZON 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064 Attorneys for Plaintiff Amalgamated Transit Union Local 192 Richard Marcantonio Guillermo Mayer Elisabeth Voigt PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105 Telephone: (415) 431-7430 Facsimile: (415) 431-1048 Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Proposed Class
Adrienne L. Bloch COMMUNITIES FOR A BETTER ENVIRONMENT 1440 Broadway, Suite 701 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438 Attorneys for Plaintiff Communities for a Better Environment
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1 Dated: February 21, 2007 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 IT IS SO ORDERED. 19 Dated: _F__eb_r_u_a_r_y_2_3_,_2_0_0_7__ 20 21 22 23 24 25 26 27 28
STIPULATION & [PROPOSED] ORDER RE DISCOVERY AND CLASS CERTIFICATION
Case No. C-05-1597-EDL

UNITED S ALIFORNIA

OURT NORTH

HANSON BRIDGETT MARCUS VLAHOS & RUDY, LLP
By: /s/ Kim Manolius Kim Manolius
Kimon Manolius Warren R. Webster Julia H. Veit 425 Market Street, 26th Floor San Francisco, CA 94105 Telephone: (415) 777-3200 Facsimile: (415) 541-9366 Francis F. Chin Cynthia E. Segal METROPOLITAN TRANSPORTATION COMMISSION Joseph P. Bort Metrocenter 101 8th Street Oakland, CA 94607-4700 Telephone: (510) 817-5700 Facsimile: (510) 817-5848 Attorneys for Defendant Metropolitan Transportation Commission
TATES DISTRICT C H__O_N__O_R__AIT_B_IL_S_ES_OE__LO_IZ_R_AD_BE_E_R_TE_HD__L_A_P__O_R_T__E U.S. MAGISTRATE JUDGE
Judge Elizabeth D. Laporte
ERN DISTRICT OF C
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1 HANSON BRIDGETT MARCUS VLAHOS & RUDY, LLP KIMON MANOLIUS - 15497
2 WARREN WEBSTER - 209540 JULIA H. VEIT - 209207
3 KARIN M. ARNOLD - 228565 333 Market Street, 21st Floor
4 San Francisco, CA 94105-2173 Telephone: (415) 777-3200
5 Facsimile: (415) 541-9366 jveit@hansonbridgett.com
6

7 FRANCIS F. CHIN - 059231 CYNTHIA E. SEGAL - 179636
8 Metropolitan Transportation Commission Joseph P. Bort Metrocenter
9 101 8th Street Oakland, Ca 94607-4700
10 Telephone: (510) 817-5700 Facsimile: (510) 817-5848
11 fchin@mtc.ca.gov

12 Attorneys for Defendant
13 Metropolitan Transportation Commission

14

UNITED STATES DISTRICT COURT

15

FOR THE NORTHERN DISTRICT OF CALIFORNIA

16

17 SYLVIA DARENSBURG, VIRGINIA MARTINEZ, and VIVIAN HAIN;
18 individuals on behalf of themselves and all others similarly situated;
19 AMALGAMATED TRANSIT UNION 192; COMMUNITIES FOR A BETTER
20 ENVIRONMENT,

21

Plaintiffs,

22

v.

No. C 0501597 EDL
DEFENDANT METROPOLITAN TRANSPORTATION COMMISSION'S AMENDED NOTICE OF MOTION AND MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED; AMENDED MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

23 METROPOLITAN TRANSPORTATION COMMISSION,
24 Defendant.
25

Date: Tuesday, December 13, 2005 Time: 2:00 p.m. Crtrm: E, 15th Floor Before: Magistrate Judge Elizabeth D. LaPorte

26

27

28

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1 2 3 I. 4 II. 5 6 7 8 9 10 11 III. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

TABLE OF CONTENTS

INTRODUCTION .............................................................................................................. 1

FACTUAL BACKGROUND ............................................................................................. 3

A. The Truth About the Metropolitan Transportation Commission ............................ 3

1. MTC's Mandate and Planning Activities.................................................... 3

2. MTC's Annual Funding Activities ............................................................. 5

a. Funding Sources and Uses .............................................................. 5

b. Riclunond Bus Project and Free Bus Passes ................................... 7

B. The Truth About AC Transit Belies Plaintiffs' Allegations ................................... 8

1. AC Transit's Enabling Legislation ............................................................. 8

2. AC Transit's Strategic Vision and Short-Range Transit Plan..................... 9

PROCEDURAL BACKGROUND ................................................................................... 10

A. Legal Standard ...................................................................................................... 11

B. Plaintiffs Have Failed to Allege Standing Sufficient to Maintain this Action In Federal Court .................................................................................................... 12

1. Plaintiffs Have Not and Cannot Demonstrate That MTC's Alleged Actions Have Caused Their Alleged Injuries........................................... 13

a. Preventive Maintenance ................................................................ 14

b. Riclunond Bus Project .................................................................. 15

c. Lobbying Efforts........................................................................... 16

d. Expansion Proj ects ........................................................................ 17

e. Service Cuts .................................................................................. 18

f.

The Allegations Are Too Conclusory and Generalized For

This Court to Accept to Establish Causation................................ 18

2. Plaintiffs Still Cannot Demonstrate That The Relief They Seek From MTC Will Redress Their Alleged Injuries ..................................... 20

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1

TABLE OF AUTHORITIES

2

3 Cases

4 Allen v. Wright

5

468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984) ............................................ 12

Cholla Ready Mix, Inc. v. Civish

6

382 F.3d 969 (9th Cir. 2004)...................................................................................................... 24

7

City ofCeres v. City ofModesto 274 Cal.App.2d 545, 550, 79 Cal.Rptr. 168, 170 (1969 ............................................................ 22

u.s. 8 Del Puerto Water Dist. v. Bureau ofReclamation

271 F.Supp.2d 1224, 1231 (E.D. Cal. 2003) ........................................................................ 12, 15

9 Dorothy K. Winston & Co. v. Town Heights Development, Inc.

10

376 F.Supp. 1214 (D. D.C. 1974) .............................................................................................. 11

G.L. Mezzetta v. City ofAmerican Canyon

11

78 Cal.AppAth 1087, 1092,93 Cal.Rptr.2d 292,295-296 (2000) ........................................... 22

12

Haskell v. Time, Inc. 857 F.Supp. 1392, 1397 (E.D. Cal. 1994) ................................................................................. 12

13 Hayward Area Planning Ass 'n., Inc. v. Alameda Cty. Trans. Auth.

72 Cal.App.4th 95, 104-108,84 Cal.Rptr.2d 744, 749-751 (1999) ........................................... 22

14 Hubbard v. City ofSan Diego

15

55 Cal.App.3d 380, 127 Cal.Rptr. 587 (1976) .......................................................................... 22

I Meyer Pincus & Assocs., P. C. v. Oppenheimer & Co., Inc.

16

936 F.2d 759 (2d Cir.1991) ........................................................................................................ 12

17

Kowal v. MCI Communications Corp., 16 F.3d 1271 (D.C. Cir. 1994) ................................................................................................... 11

18 Lee v. City ofLos Angeles

250 F.3d 668, 688 (9th Cir. 2001 .............................................................................................. 11

19 Mack v. South Bay Beer Distrib.

20

798 F.2d 1279, 1282 (9th Cir. 1986)......................................................................................... 12

Midway Orchards v. County ofButte

21

220 Cal.App.3d 765, 783, 269 Cal.Rptr. 796, 807 (1990) ........................................................ 22

22

National Wrestling Coaches Ass'n v. Dept. ofEduc. 366 F.3d 930, 938 (D.C. Cir. 2004) ........................................................................................... 21

23 Scott v. Common Council ofCity ofSan Bernardino

44 Cal.App.4th 684,697-698,52 Cal.Rptr.2d 161, 170 (1996) ................................................ 22

24 Steel Co. v. Citizens for a Better Environment

25

523 U.S. 83, 107, 118 S.Ct. 1003, 1019, 140 L.Ed.2d 210 (1998) ............................................ 21

Taylor v. The Regents ofthe Univ. ofCalifornia

26

993 F.2d 710, 712 ...................................................................................................................... 24

27

Warth v. Seldin, 422 U.S. 490, 518, 95 S. Ct. 2197, 2215, 45 L.Ed.2d 343 (1975) ............................................. 12

28

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1

TABLE OF AUTHORITIES

(continued)
2

3 Westlands Water Dist. v. Us. Dept. ofInterior, Bureau ofReclamation 850 F.Supp. 1388, 1399 (E.D. Cal. 1994) ........................................................................... 12, 15
4

5 Statutes

6 23 U.S.C.

7

§ 34(g) ................................. :........................................................................................................ 3

§§ 133, 149 ............................................................................................................................... 5,6

8 42 U.S.C.

9

§ 2000d....................................................................................................................................... 10

Federal Rule of Civil Procedure

10

Rule 12(b)(6) ......................................................................................................................... 1,11

11

California Code of Civil Procedure

12

§ 335.1 ........................................................................................................................................ 24

13

California Government Code §§ 65080, 66513, 29532 ............................................................................................................... 3

14

§§ 66500 ................................................................................................................................. 3,21

15

§ 11135 ....................................................................................................................................... 10

California Public Utilities Code

16 § 24506 .......................................................................................................................................... 9

17

§ 24823 .......................................................................................................................................... 8

§ 24830.......................................................................................................................................... 8

18

§ 24884.......................................................................................................................................... 8

19 § 24885 .................................................................................................................................... 9,21

20

§§ 24646 ........................................................................................................................................ 8

§ 24561 .......................................................................................................................................... 8

21

§ 24883 .................................................................................................................................... 8,21

22 § 24501 .................................................................................................................................... 8, 19

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION

2 TO PLAINTIFFS DARENSBURG, MARTINEZ, RAIN, AMALGAMATED TRANSIT UNION

3 192 and COMMUNITIES FOR A BETTER ENVIRONMENT, and their attorneys of record:

4

PLEASE TAKE NOTICE TRAT on Tuesday, December 13, 2005, at 2:00 p.m. or as soon

5 thereafter as this matter may be heard, Defendant METROPOLITAN TRANSPORTATION

6 COMMISSION, ("MTC") will and hereby does bring this amended motion seeking an order by

7 this Court dismissing the Complaint for Injunctive and Declaratory Relief of Plaintiffs

8 DARENSBURG, MARTINEZ, RAIN, AMALGAMATED TRANSIT UNION 192 ("ATU") and

9 COMMUNITIES FOR A BETTER ENVIRONMENT ("CBE") on the ground that the Complaint

10 fails to state a claim upon which relief can be granted pursuant to Federal Rule of Civil Procedure

11 Rule 12(b)(6).

12

Plaintiffs cannot demonstrate that MTC in any way caused their alleged injuries, nor can

13 they show that any relief granted by this Court likely will redress their alleged injuries. Plaintiffs'

14 handful of specific allegations are inaccurate when evaluated in light of the documents upon

15 which they rely in the Amended Complaint. These documents, subject to judicial notice as

16 official acts of government entity MTC and because of their inclusion in the Amended Complaint,

17 undermine completely Plaintiffs' factual allegations. Moreover, the remaining allegations are so

18 unclear and conclusory as to not allow MTC to evaluate whether the challenged conduct occurred

19 within the relevant two-year limitations period and fail to state a claim.

20

This amended motion is based on the following Memorandum of Points and Authorities,

21 the Amended and initial Complaint on file in this action, all documents in the Court's file on this

22 matter, MTC's Request for Judicial Notice filed October 28,2005, and the Declaration of Alix

23 Bockelman in support thereof filed October 28, 2005 (with its exhibits), and any other evidence

24 or materials that the Court may allow before or at the time the matter is set to be heard.

25

MEMORANDUM OF POINTS AND AUTHORITIES

26

I. INTRODUCTION

27

Plaintiffs have filed a First Amended Complaint ("FAC") that fails to rectify the

28 deficiencies noted in this Court's September 19, 2005 Order ("Order") dismissing their original.

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1 Plaintiffs fail to demonstrate they have standing to bring this action, because they cannot show

2 that MTC has in any way caused their alleged injuries. Nor can they show that any order of this

3 Court likely will provide redress where, as here, the truly responsible party (AC Transit) is not

4 before the Court.

5

Plaintiffs do make a handful of new and specific factual allegations. These new

6 allegations, however, are troubling as Plaintiffs misstate the content ofthe documents on which

7 their FAC relies. This Court can and must take judicial notice of those documents to which

8 Plaintiffs refer so that the Court is not misled. Plaintiffs cannot avoid dismissal by presenting

9 misleading accounts of public documents, which are judicially noticeable and easily verifiable.

10

For example, Plaintiffs allude to a letter from 39 Ministers requesting funding for a

11 specific Richmond bus project to show causation. In fact, that letter requests increased funding

12 for all AC Transit routes including Transbay service. AC Transit never requested funding for

13 that Richmond project, and MTC already has funded that project through a different operator,

14 WestCAT. Similarly, Plaintiffs allege that MTC adopted a policy to prevent AC Transit from

15 using preventive maintenance (capital) funds for operations. This is patently untrue. MTC's

16 policies, embodied in Commission's resolutions, generally apply to all operators in MTC's

17 jurisdiction. Where that is not the case, MTC has allowed AC Transit along with two other

18 operators special status to allow the continued use of preventive maintenance funds. As a result,

19 MTC has provided AC Transit with these funds every year since FY 1999-2000. MTC has

20 ensured continued access to these funds, which AC Transit again has requested for the next fiscal

21 year. Finally, MTC's and AC Transit's enabling legislation dispel any suggestion that in the past

22 MTC should or could have dictated fares, routes, and schedules to AC Transit.

23

As to redressability, Plaintiffs make unsupported allegations with regard to the content

24 and status of funding for projects on the horizon for AC Transit. AC Transit's strategic vision

25 documents demonstrate commitments to expand services across all of that transit agency's service

26 area, not just in Plaintiffs' desired areas. This occurs even as AC Transit acknowledges service

27 cuts in some of its service areas. Moreover, it is also very evident that AC Transit seeks funding

28 for these future initiatives from any number of sources, not just MTC, and that MTC already is

2
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1 programming funding for much of AC Transit's strategic vision.

2

Plaintiffs make other new allegations to be sure. They are of a most conclusory nature

3 with no factual underpinning. The FAC fails to provide MTC with sufficient detail to enable it to

4 digest and evaluate the new allegations, or to even determine, for example, whether these claims

5 even arose within the relevant two-year limitations period.

6

Plaintiffs have not demonstrated that this Court has subject matter jurisdiction here. This

7 Court now has allowed Plaintiffs two opportunities to demonstrate their standing, but they have

8 failed. The Court should dismiss this matter without leave to amend.

9

II. FACTUAL BACKGROUND

10

The FAC makes just a handful of specific allegations concerning MTC's discriminatory

11 conduct. Even a cursory look at the documents on which Plaintiffs rely, however, demonstrates

12 that, at best, Plaintiffs misunderstand the state ofMTC's actions and policies.

13 A.
14

The Truth About the Metropolitan Transportation Commission Plaintiffs misstate MTC's role and statutory mandate. Since its creation in 1970 by the

15 California Legislature, MTC has been the Bay Area's local area transportation planning agency,

16 providing comprehensive transportation planning for the City and County of San Francisco,

17 Alameda, Contra Costa, Marin, Napa, San Mateo, Santa Clara, Solano, and Sonoma Counties.

18 Cal. Gov. Code §§ 66500 et. seq. The region's transportation system also includes 101 cities with

19 three major airports, five public ports, eight toll bridges, dozens of highways, hundreds of miles

20 of bicycle and pedestrian routes, thousands of buses, cable cars, rail cars, and ferries, thousands of

21 miles oflocal streets and roads, and over two dozen independently governed transit operators.

22

1. MTC's Mandate and Planning Activities

23

Plaintiffs refer throughout their FAC to MTC's Regional Transportation Plan ("RTP"),

24 which is mandated by California law to help achieve a coordinated and balanced regional

25 transportation system, including, mass transportation, highway, railroad, maritime, bicycle,

26 pedestrian, goods movement and aviation facilities and services. Cal. Gov. Code §§ 65080,

27 66513,29532. The RTP also is the region's long-range transportation plan, a prerequisite for

28 federal funds. See 23 U.S.C. § 34(g). The current RTP, which was published in 2005, is entitled

3
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1 Transportation 2030 ("2005 RTP,,).I

2

Plaintiffs also refer at great length to MTC's 2001 Regional Transit Plan ("2001 RTP")

3 but misstate its contents, especially with respect to the Lifeline Transportation Network

4 ("LTN,,).2 The purpose of the LTN analysis, which was completed as part of the 2001 RTP, was

5 to assess the current ability ofthe fixed route transit system to serve low-income communities.

6 The analysis considered the proximity, timing, and availability of fixed routes to low-income

7 communities. It revealed that few spatial gaps existed in the LTN. About half (43%) of the

8 region's existing transit routes met the criteria for lifeline service. (LTN at p. 4, 21.) Most of the

9 gaps were temporal in nature, meaning that the transit system was not available during the service

10 hour objectives established for the analysis. Assuming a fixed route solution, an additional 1.55

11 million service hours would be needed, or an increase of 13% in total fixed route service that

12 operated in the Bay Area in 2001. (Id. at p. 26.) The LTN Report recognized that many

13 transportation gaps experienced by low-income residents of the Bay Area are not necessarily best

14 met by providing additional fixed route service. (Id.) Contrary to Plaintiffs' assertions of a $1

15 billion shortfall, MTC did not provide any dollar estimate for providing this level of service.

16 Rather, MTC will consider a variety of solutions, such as the provision of shuttles, guaranteed

17 ride home programs, etc.

18

During Phase I of the 2005 RTP, the Commission agreed to dedicate $216 million in new

19 funds to supplement already existing lifeline services and programs, which represents 43% of the

20 region's transit services, are funded primarily by public subsidy. (2005 RTP at pp. 52-55.) MTC

21 anticipates that it may obtain funds from State Proposition 42 State Transit Assistance ("STA")

22 funds, and from Federal Job Access and Reverse Commute (JARC) funds. (Id. at p. 55.)

23

24 I I I

25 1 The 2005 RTP or "Transportation 2030" is available on MTC's website.
26 (http://www.mtc.ca.gov/planning/2030planlindex.htm)

27 2 The 2001 RTP is also available on MTC's website. The Lifeline Transportation Network analysis was completed as part of the RTP and can be found at:
28 http://w-ww.mtc.ca.gov/library/2001rtp/lifeline.htm.

4
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1

2. MTC's Annual Funding Activities

2

a. Funding Sources and Uses

3

As set forth in its initial Motion to Dismiss, MTC has general statutory authority to

4 program transportation funds, and depending on the funding source, specific statutory authority to

5 allocate transportation funds. There are different rules governing each funding source; these are

6 not MTC's rules but come from federal, state, or local law. There are two broad categories of

7 funds: Operatingfunds and Capital funds. There are two major sources: Non-Federal and

8 Federal. In almost all cases, funds available for operations are from non-federal sources. The

9 great bulk of capital funds come from federal sources. Except for situations where operational

10 maintenance expenses can be capitalized (Capitalized or Preventive Maintenance), transit

11 operators cannot utilize capital funds for operational expenses, except under strict limitations.

12

MTC provided the specifics of transportation funding sources in its Memorandum of

13 Points and Authorities in support of its first motion to dismiss. In summary, approximately 60%

14 of AC Transit's operating budget comes from funds outside ofMTC's programming or

15 allocations jurisdiction. Of the remaining 40% that are subject to review by MTC, AC Transit

16 receives more than its "fair share" under MTC's policy direction. In fact, MTC's allocations to

17 AC Transit have outstripped inflation by 60% over the last 20 years.

18

On the capital side, MTC adopts policies for specific funding programs, such as the FTA's

19 Urbanized Area! Fixed Guideway Rail Modernization programs, and Federal Aid Highway's

20 Surface Transportation Program ("STP"), and Congestion Mitigation and Air Quality

21 Improvement Programs ("CMAQ"). In addition, because FTA's funding is by project, the

22 funding flow to any single transit operator is irregular, reflecting the cyclical nature of capital

23 replacement. STP and CMAQ funds are flexible highway funding categories first authorized

24 under ISTEA and retained under TEA-21. See 23 U.S.c. §§ 133, 149. MTC, in partnership with

25 the region's congestion management agencies, transit operators, and the California Department of

26 Transportation ("Caltrans"), developed project selection and ranking criteria for these funds,

27 which can be spent on highways, local roads, bike and pedestrian facilities as well as transit. STP

28 is limited to capital expenses. CMAQ is generally limited to capital expenses, but may also be

5
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1 used to help fund operating costs for the first three years of new operations.

2

As part ofMTC Resolution No. 3695, MTC made available $106.9 million in STP and

3 CMAQ funds to regional projects. (Declaration of Alix Bockelman ("Bockelman Dec!.") in
4 support of Request for Judicial Notice at ~6, Exh. c-ooll This funding became available as a
5 result of unanticipated federal funding, due mostly to the region's successful use of federal dollars

6 in advance of state and federal deadlines. These dollars were directed to several categories of

7 projects; one of which was strategic expansion as Plaintiffs note. (Id. at C-003-04, 010-11.)

8 What Plaintiffs fail to mention is that the strategic expansion funding was directed solely to

9 ready-to-go projects already programmed in the State Transportation Improvement Program 10 (STIP) that had been stalled as a result of the recent state budget shortfalls. (Id. at C-OI0-ll.) 11 Because AC Transit did not have any strategic expansion projects in the STIP, there were no AC 12 Transit (or any other transit project for that matter) projects under consideration for this funding

13 category. (Id. at C-016.)

14

As to preventive maintenance funds, it was Congress that phased out completely federal

15 transit operating assistance for large urban areas in Fiscal Year ("FY") 1998-99. Title 23 US.c.

16 §§ 133, 149. Since that time, MTC has creatively enabled Bay Area operators, including AC

17 Transit, to continue to capitalize maintenance expenses, which are normally operating expenses, 18 with FTA § 5307 capital funds. (See generally, id. at ~8, Exhs. D, E, F.) Starting in 1999, AC

19 Transit requested preventive maintenance funds from MTC for operating expenses until passage

20 of a local tax measure, Measure B. MTC approved this request. (Exh. E-017-20.)

21

MTC's efforts on AC Transit's behalf continued in 2001. AC Transit requested that MTC

22 exchange funds programmed to several bus projects for preventive maintenance. This, in tum,

23 would free up operating dollars from AC Transit's budget that could be used to buy busses that

24 did not meet federal "Buy America" requirements. MTC approved this request. (Id., E-005, 013,

25 017-20,026 (Tip Amendment #01-19 (embodied in MTC Revised Resolution. No. 3300).) In

26 2002, MTC adopted Resolution No. 3515 for FY 2003-04, which directed FTA §5307 funds, 27 usually reserved for capital expenditures, for preventive maintenance due to severe budget

28 3 All subsequent references to exhibits are to exhibits attached to the Bockelman Declaration.

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1 conditions for transit operators in MTC's jurisdiction. (Exh. F-001-015.) AC Transit requested

2 and received preventive maintenance funds under this policy. (Exh. E-190.)

3

In 2003, MTC adopted Resolution 3580 for FY 2004-05 that allowed the use of §5307

4 capital funds for preventive maintenance if an operator could show that a budget shortfall exists

5 and that the shortfall would result in significant service reductions. (Exh. D-041.) AC Transit,

6 along with Golden Gate Transit and Santa Clara VTA requested preventive maintenance funds in

7 light of the continuing economic hardships they faced; MTC programmed preventive

8 maintenance funds to AC Transit in that fiscal year through MTC Resolution No. 3616. (Id.; see

9 also, Exh. E-202-05.) In 2004, the following year, MTC again programmed preventive

10 maintenance funds to AC Transit. (Id. at E-208.)

11

In 2005, MTC instituted a new policy regarding the use of §5307 Funds through

12 Resolution No. 3688 ("2005 Policy") (Exh. D-001-02) for FYs 2005-06 through 2007-08. The

13 new 2005 Policy does apply not only to AC Transit, but to all operators within MTC's

14 jurisdiction. (Id.) Under the 2005 Policy, AC Transit has requested preventive maintenance

15 funds for FY 2005-06, and MTC has programmed these funds for FY 2005-06 through MTC

16 Resolution No. 3714. (Id.; see also Exh. E-212-15.)

17

Prior to its action to institute a preventive maintenance policy in 2005, MTC scored

18 preventive maintenance as a lower scoring project when considering all requests for FTA funds.

19 Because ofthe many requests for higher scoring projects - such as vehicle replacement and track

20 rehabilitation - preventive maintenance was rarely funded. However, as noted above, MTC made

21 exceptions to its scoring policy starting in 2001 to meet AC Transit's needs. As noted at the

22 outset, the 2005 Policy establishes a more permanent process whereby operators experiencing

23 financial hardship are able to access preventive maintenance. (Exh. D-001-02, 008, 011, 016,

24 020,025-27.)

25

b. Richmond Bus Project and Free Bus Passes

26

Plaintiffs refer to a letter sent to MTC by 39 Ministers ("Ministers' Letter") demanding

27 that MTC fund a specific Richmond bus program in 2001. The Ministers made no such request

28 and the Richmond bus program does not appear in the Ministers' letter. Rather, they requested

7
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1 that MTC give AC Transit more money for all ofits East Bay and TransBay operations. (Exh.

2 G-OOl.) Moreover, contrary to Plaintiffs' suggestions, AC Transit never requested funding for

Bl 3 that program. (See Exh. A-I08-116, Exh.

Instead, another operator, WestCAT, requested

4 and received funding for the Richmond bus program. (Exh. H-002-013, 16-21; Exh. 1-004-06,

5 021,038,041 and 048.) WestCat's project is referenced as the "WestCat 30Z" program in the

6 "Blueprint Project Notebook to the RTP" referenced in the FAC. (Exh. L-012-13.) This project

7 is listed as the "Intra West Contra Costa Rapid Bus" and is ranked as the most cost-effective

8 project in the RTP Blueprint. (Id. at L-009.)

9

Plaintiffs' reference to MTC's denial of a free bus pass program for AC Transit is also

10 confusing as MTC funding that program. (Exh. M-00I-04.)

11 B. 12

The Truth About AC Transit Belies Plaintiffs' Allegations Plaintiffs' quarrel should be with AC Transit over that agency's priorities. Plaintiffs,

13 however, have chosen to paint AC Transit as a helpless pawn without power to determine its own

14 transportation policies, routes, fares, and schedules. The Court must not let Plaintiffs escape

15 dismissal of this matter by allowing reliance upon patently untrue allegations that are contradicted

16 by AC Transit's enabling legislation and transportation planning documents.

17

1. AC Transit's Enabling Legislation

18

In enacting California Public Utilities Code § 24501, et seq., the California Legislature

19 authorized the creation the Alameda-Contra Costa Transit District ("AC Transit"). Cal. Pub. Util.

20 Code § 24561. A Board of Directors runs AC Transit; each Director is elected from the District's

21 five wards with two at-large members. Id. §§ 24646 et seq., §§ 24823 et seq., and §§ 24830 et

22 seq. "The Board is the legislative body of the district and determines all questions of policy." Id.

23 § 24883. "All matters and things necessary for the proper administration of the affairs of the

24 district which are not provided for in this part shall be provided by the Board." Id. § 24884.

25 4 Exhibit A is comprised of several documents that make up the Regional Transit Expansion Plan. Resolution 3357 is the Regional Transit Expansion Policy and Criteria, which is
26 incorporated as Appendix A, (Exh. A-043-60), in the Regional Transit Expansion Policy: Initial Assessment, (id. at A-025-120). Resolution 3434, (id. at A-001-16) adopted Resolution 3357 and
27 the Regional Transportation Expansion Program of Projects. Attachment A to Resolution 3434 lists the projects funded. (Id. at A-007). Appendix B to the Regional Expansion Transit Policy:
28 Initial Assessment is the list of projects proposed to be included in the RTEP. (!d. at A-061-120.)

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1 Finally,

2

The Board shall supervise and regulate every transit facility owned

and operated by the district, including the fixing of rates, rentals,

3

charges, and classifications, and the making and enforcement of

rules, regulations, contracts, practices, and schedules, for or in

4

connection with any transit facility owned or controlled by the

district. 5

6 ld. § 24885. "Transit facilities" are defined as all real and personal property, equipment, rights,

7 or interests owned or to be acquired by the district for transit service. ld. § 24506.

8

2. AC Transit's Strategic Vision and Short-Range Transit Plan

9

AC Transit's Strategic Vision, cited by Plaintiffs, is contained at Chapter 5 of its Short

10 Range Transit Plan (FY2001-FY2010). (Exh. J.) It describes a tiered approach to "accomplish

11 the goal of increasing ridership to about 85 million by 2005-06, then rising to 100 million by

12 2010." (ld. at J-005.) The first tier is known as the Financially Constrained Operating Plan

13 ("FCOP"), "which is based on anticipated revenue from existing sources." In their 2001

14 "Strategic Vision," AC Transit planned to maintain service levels reinstated in 1999 and even add

15 a small amount of service, based on anticipated funding through Alameda County Measure B.

16 (Id. at p. J-012). However, even though the maintained and increased services were funded by

17 Measure B, according to AC Transit, AC Transit has cut service levels by approximately 14%

18 since 2003 because the revenues "have not been as robust as planned" in their 2001 Strategic

19 Vision (ld. at J-012). The Strategic Vision notes that ridership on AC Transit has "decreased

20 significantly--primarily due to the poor economy and unemployment." (!d. at J-005). AC Transit

21 now considers the return of service to levels and the improvements envisioned in 2001 as the

22 second tier of the Strategic Vision. (See id. at J-006). Tier 1 (the FCOP) is already funded.

23

The third tier, the Optimal Service Plan ("OSP"), is broken into Phases I and II. (ld. at J-

24 033.) The OSP is a wish list of service enhancements AC Transit could implement. Phase I is the

25 Rapid Bus Program. Phase I envisions "[c]apital and operating improvements.. .in the top ten

26 corridors, [i]mproving midday and owl service," and "flexible service concepts in areas oflow

27 density." (ld. at J-017) Of Phase I, AC Transit's Strategic Vision recites:

28

The Metropolitan Transportation Commission realized the

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1
2 3 4
(!d.)

importance of these Enhanced Bus corridors, and has included them into the final Regional Transportation Plan (RTP) and Regional Transit Expansion Program or Projects (RTEP). The Telegraph/International/E. 14th Street Corridor has been included under Track One of the RTP, while Hesparian, Foothill and MacArthur Boulevard Corridors have been included in the RTEP.

5 Phase II, known as Bus Rapid Transit (BRT) "envisions further improvements on several

6 of the highest ridership corridors," (id. at J-006) including "minor service increases and major

7 capital investment on the top four corridors-only for the most heavily used corridors in the East

8 Bay." (Id. at J-015) In addition to these tiers, AC Transit mentions that it "is also exploring

9
opportunities to manage ferry services." (Id. at J-024.)

10 Finally, in terms of financing the projects of the Strategic Vision, AC Transit notes that it

11 has "not identified all revenue streams to implement them. However, Local, Regional and

12 Federal partners can assist [AC Transit] in prioritizing those elements ofthe Strategic Vision that

13 can either be funded or identified for advocacy." (Id. at J-025.) And, "[fJull implementation of

14 AC Transit's Vision requires a partnership with the communities we serve." (Id. at J-036.) AC

15 Transit deems external factors essential to full implementation of Vision including:

16

Local Cities and other jurisdictions served by AC Transit must

17

adopt "transit first" policies on [AC Transit's] trunk lines...Caltrans

and other regional agencies must recognize the special value of a

18

highly functional Transbay bus system... [and] Public/private

partnership opportunities should be explored whenever possible to

19

help AC Transit meet the needs of expanding and emerging

markets.

20 (Id.) AC Transit does not assume that MTC is its sole funding source.

21
III. PROCEDURAL BACKGROUND 22
Plaintiffs initially filed a complaint on April 19, 2005 alleging that MTC violated: (1)

23 Title VI of the Civil Rights Act of 1964,42 U.S.C. § 2000d; (2) the Equal Protection Clause of

24 the Fourteenth Amendment of the United States Constitution; and, (3) California Government

25 Code § 11135 by engaging in discriminatory funding practices against the riders of AC Transit.

26 After the August 18,2005 hearing on MTC's motion to dismiss, this Court issued its

27 September 19,2005 Order granting MTC's motion with leave to amend. On October 11, 2005,

28

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1 Plaintiffs filed their First Amended Complaint.

2

IV. MOTION TO DISMISS

3 A.
4

Legal Standard. A complaint "should not be dismissed unless it appears beyond doubt that plaintiff can

5 prove no set of facts in support of his claim which would entitle him to relief." Van Buskirk v.

6 Cable News Network, Inc., 284 F.3d 977,980 (9th Cir. 2002). "For purposes of ruling on a

7 motion to dismiss for want of standing, both the trial and reviewing courts must accept as true all

8 material allegations of the complaint, and must construe the complaint in favor of the

9 complaining party." Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2137,

10 119 L.Ed.2d 351 (1992). The court "need not accept inferences drawn by the plaintiffs if such

11 inferences are unsupported by the facts set out in the complaint." Kowal v. MCI Communications

12 Corp., 16 F.3d 1271 (D.C. Cir. 1994).

13

A complaint upon which relief may be granted must at the very least outline a recognized

14 legal or equitable claim that sufficiently pinpoints the time, place and circumstances of the

15 alleged occurrences and which, if later proven to the required legal degree, will justify some form

16 of relief, in order to withstand a motion to dismiss. Dorothy K. Winston & Co. v. Town Heights

17 Development, Inc., 376 F.Supp. 1214 (D. D.C. 1974).

18

On a Rule 12(b)(6) motion, the Court may look at extrinsic evidence in two ways without

19 converting it into a motion for summary judgment. First, the Court may consider "material which

20 is properly submitted as part ofthe complaint" on a motion to dismiss without converting the

21 motion to dismiss into a motion for summary judgment. Lee v. City ofLos Angeles, 250 F.3d 668,

22 688 (9th Cir. 2001). If the documents are not physically attached to the complaint, they may be

23 considered if the documents' "authenticity ... is not contested" and "the plaintiffs complaint

24 necessarily relies" on them. Id. At least one court used the following reasoning to explain this

25 rule:

A plaintiff who pleads misrepresentations in a particular document ought

26

not be permitted to defeat a motion to dismiss through the artifice of not

attaching the critical document to the complaint. In these circumstances

27

the rationale for converting a motion to dismiss into one for summary

judgment--that plaintiff must have sufficient notice--"is largely dissipated"

28

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1

because the plaintiff had ample notice of a critical document on which the

complaint is based.

2

3 1. Meyer Pincus & Assocs., P.e. v. Oppenheimer & Co., Inc., 936 F.2d 759 (2d Cir.1991); accord

4 Haskell v. Time, Inc., 857 F.Supp. 1392, 1397 (B.D. Cal. 1994). Such documents are considered

5 incorporated by reference in the complaint under Fed. R. Civ. Proc. 10(c). Allegations in the

6 complaint may be disregarded if contradicted by facts established by exhibits attached to the
u.s. 7 complaint. Del Puerto Water Dist. v. Bureau ofReclamation, 271 F.Supp.2d 1224,
8 1231 (E.D. Cal. 2003).

9

Second, under Federal Rule of Evidence 201, a court may take judicial notice of "matters

10 of public record." Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986). The 11 court need not accept as true allegations that contradict facts that may be judicially noticed.
u.s. 12 Westlands Water Dist. v. Dept. ofInterior, Bureau ofReclamation, 850 F.Supp. 1388,

13 1399 (E.D. Cal. 1994).

14 B. 15 16

Plaintiffs Have Failed to Allege Standing Sufficient to Maintain this Action In Federal Court.
Standing is "an essential and unchanging part of the case-or-controversy requirement of

17 Article III," Lujan, 504 U.S. at 560, which itself "defines with respect to the Judicial Branch the

18 idea of separation of powers on which the Federal Government is founded." Allen v. Wright, 468

19 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984).

20

Plaintiffs have the burden to allege facts demonstrating that they are proper parties to

21 invoke judicial resolution of this dispute and the exercise of this Court's remedial powers. See

22 Warth v. Seldin, 422 U.S. 490, 518, 95 S. Ct. 2197, 2215, 45 L.Ed.2d 343 (1975). Aparty

23 seeking to invoke a federal court's jurisdiction must demonstrate three things: (1) "injury in fact";

24 (2) a causal relationship between the injury and the challenged conduct; and (3) a likelihood that

25 the injury will be redressed by a favorable decision. See id.

26

As the Court acknowledged in its Order, while Plaintiffs met their burden to show injury

27 in fact, they did not meet the elements of causation and redressability. For the reasons discussed

28 below, Plaintiffs' FAC remains deficient. Accordingly, after two bites at the apple, the Court

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1 should dismiss this case with prejudice.

2

1. Plaintiffs Have Not and Cannot Demonstrate That MTC's Alleged

Actions Have Caused Their Alleged Injuries.

3

4

The causation element of standing requires that Plaintiffs show that MTC's funding

5 decisions were "fairly traceable to the challenged action of the defendant." Lujan, 504 U.S. at

6 560. Even with the Court's Order guiding them as to what to allege to cure the deficiencies in the

7 Complaint to meet this element, Plaintiffs' amended allegations still fail.

8

When a plaintiffs asserted injury arises from the government's regulation of a third party

9 that is not before the court, it becomes "substantially more difficult" to establish standing. Id. at

10 562 (citations and internal quotation marks omitted). Moreover, as the Court noted in its Order,

11 MTC's actions must at a minimum be a "substantial motivating factor" in AC Transit's decisions

12 to show causation exists. (Order at 8.) To establish this prong, Plaintiffs must show that MTC's

13 actions have a determinative effect on AC Transit's funding decisions to Plaintiffs' disadvantage.

14 Bennett v. Spear, 520 U.S. 154 (1997).

15

The Court found that Plaintiffs' allegations "approached" this showing with its general

16 allegations in the Complaint, noting the allegations that MTC's funding practices deny equal

17 opportunities and benefits to Plaintiffs, which result in Plaintiffs receiving an inferior quality and

18 quantity of service. (Order at 8.) These allegations, however, were insufficient. The Court then

19 provided a detailed road map directing Plaintiffs as to how to cure their defective allegations. It

20 did so by pointing out the only two specific examples ofMTC's actions that potentially caused

21 Plaintiffs' harm - allegations regarding (1) preventive maintenance funds; and (2) the funding of

22 the Richmond project - that were not adequately tied to AC Transit's acts to establish causation.

23

Although Plaintiffs attempted to cure the defects that the Court identified, the allegations

24 are still lacking. To be sure, a review of extrinsic evidence which the Court can and should

25 consider in reviewing this motion contradicts the claims made regarding these specific projects.

26 The Court need not accept these allegations as true, and should disregard them. Nor have the

27 Plaintiffs added any new allegations to the FAC that would support a finding of causation.

28 Indeed, the new allegations are nothing more than generalized statements that merely highlight

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1 the fatal flaws attending Plaintiffs' lawsuit. As demonstrated below, the vagaries and random

2 complaints about MTC's conduct are not sufficiently tied to a decline in AC Transit's service to

3 demonstrate causation.

4

a. Preventive Maintenance.

5

The first example that the Court identified in its Order involved the use of preventive

6 maintenance funds. The Court stated that although Plaintiffs alleged that "MTC curtailed AC

7 Transit's ability to make flexible use of preventive maintenance funds," the Complaint did not

8 allege, "for example, that MTC's revocation of the flexible use of preventive maintenance funds

9 is a substantial factor in inferior AC Transit services." (Order at 9:2-6.)

l O I n response, Plaintiffs amended their complaint to state that MTC decided to "curtail AC

11 Transit's ability to make use of federal 'formula' funds to cover preventive maintenance costs."

12 (FAC ~43, 13:13-16.) And that despite MTC's knowledge of the importance of having these

13 funds available, "MTC has recently adopted a policy which restricts the availability of such

14 funding to two years out of the next twelve." Id. at 13:16-19. According to Plaintiffs, this

15 decision "has the effect of injuring plaintiffs by forcing AC Transit to divert scarce operating

16 funds to use for preventive maintenance, thereby necessarily reducing the amount of operating

17 funds available for AC Transit to provide service for Plaintiffs." Id. at 13:19-23.

18

These misleading allegations, however, are contradicted by judicially noticeable facts. If

19 anything, a review of the policy and history to which Plaintiffs refer demonstrates that no such

20 revocation of funds has occurred or is subject to occur. To the contrary, MTC has bent over

21 backwards to accommodate and allow AC Transit and other operators to make use of preventive

22 maintenance funds for operations during recessionary times so that AC Transit would not have to

23 completely shut down operations. (See Exhs. D, E and F.) Rather than "curtailing that practice,"

24 after two years of allowing the transit operators to get these funds as an exception to their general

25 policy, as explained above, MTC institutionalized the exception to ensure that transit operators

26 had the opportunity to apply for such funds should the need to address an operating shortfall be

27 required in the future. AC Transit, which received preventive maintenance monies under this

28 exception in FYs 2000-01 to FY 2005-06, has also applied for these funds for FY 2006-07. In

14
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1 addition, AC Transit will likely receive funding for preventive maintenance pending confirmation

2 from AC Transit that economic hardship persists.

3

Accordingly, the Court should disregard these allegations that are contradicted by

4 judicially noticeable facts. Westlands Water Dist., 850 F.Supp. at 1399.

5

b. Richmond Bus Project.

6

The second way the Court stated that Plaintiffs could show that MTC has a coercive or

7 determinative effect on AC Transit's inferior service was if they could allege that "AC Transit did

8 not carry out" a "highly cost-effective Richmond bus project...due substantially to MTC's

9 funding decisions." (Order at 9:3-8.) In the FAC, Plaintiffs make this conclusory assertion:

10

[I]n 2001 a group of 39 African American ministers wrote to

Defendant MTC seeking equity in the per passenger funding

11

between AC Transit and local rail services. The ministers pointed

out that Defendant MTC ranked a bus project that could be

12

provided by AC Transit in the Richmond area...with a population

that is 69% minority, as the most cost-effective project considered

13

in [] MTC's Regional Transportation Plan.

14 (FAC ~48.) Plaintiffs proceed to allege, in line with the Court's Order, that because "MTC

15 rejected the proposal for the AC Transit Richmond bus project, AC Transit was unable to obtain

16 the funding that it needed in order to provide this service, thus depriving Plaintiffs of...the

17 benefits of greater mobility that the project would have afforded them." (FAC ~48, 16:6-9.)

18

Yet, a review of the Ministers' Letter and AC Transit's requests for funding that same

19 year, contradicts these statements. The Court can consider this extrinsic evidence under the

20 doctrine that the Complaint necessarily relies on the letter and the Regional Transit Expansion

21 Program of Projects, the document in which all AC Transit requests for funding for expansion

22 projects in 2001, were included. Moreover, the RTEP is a public record subject to judicial notice.

23 Because these allegations are contradicted by facts established by materials central to the

24 complaint whose authenticity is not in question, and are documents subject to judicial notice, the

25 Court should disregard them. See Del Puerto Water Dist., 271 F.Supp.2d at 1231; Westlands

26 Water Dist., 850 F.Supp. at 1399.

27

The Ministers' Letter does not request funding for any particular service. All it states is

28 that the ministers seek "equity" in funding AC Transit service because their "members who ride

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1 the bus system in the East Bay and to San Francisco depend on those buses for basic

2 transportation." (See Exh. G (emphasis added).) In addition, according to AC Transit's own

3 requests for funds, there is no mention of the Richmond bus project extension. Rather, AC

4 Transit sought funds to expand its service primarily in the cities of Oakland and Berkeley, with

5 some service extending into the cities of Emeryville and San Leandro. (See Exhs. A-108-116, B.)

6 Instead, another operator, WestCAT, requested and received funding for the Richmond bus

7 program alluded to in the Amended Complaint. (Exh. H-002-13, 016-21; Exh. 1-004-06, 021,

8 038,041 and 048.)

9

Accordingly, because neither the Ministers' Letter, nor AC Transit's funding requests

10 even mention a Richmond bus project, it simply cannot be said that MTC had a "detenninative"

11 effect on AC Transit's ability to carry out the bus project. Bennett, 520 U.S. at 160.

12

c. Lobbying Efforts.

13

Plaintiffs also provide new allegations that MTC's lobbying efforts somehow are the

14 cause of AC Transit's inferior service. Like the unpersuasive examples regarding preventive

15 maintenance monies and the Richmond bus project, these allegations do not bring Plaintiffs any

16 closer to meeting their burden to establish causation.

17

Plaintiffs acknowledge that state and federal legislation eannarks funds with conditions

18 and uses that are completely outside MTC's control. (FAC ~44.) Nevertheless, Plaintiffs believe

19 that MTC has the power to secure changes in state and federal legislation to the benefit of certain

20 transit operators over others. (FAC ~~39, 44.) For example, Plaintiffs allege that MTC

21 "successfully advocated a change in the law that would provide for allocating funds in

22 the ...JARC funding program on fonnula basis" despite an awareness that this would reduce

23 funding available to AC Transit. (FAC ~39.) With all due respect, while MTC is flattered by

24 Plaintiffs' belief that MTC has such power over Congress, even taking Plaintiffs' allegations as

25 true, it simply cannot be cognizable to charge that MTC was a "substantial factor" in detennining

26 complex state and federal transit legislation. That duty is in the province of the legislators who

27 make the laws, not a local planning body. These allegations are even more attenuated than those

28 claiming that MTC has control of AC Transit, and do not establish causation.
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1

d. Expansion Projects.

2

Additionally, Plaintiffs allege that MTC has failed to fund expansion projects that serve

3 minorities. For example, MTC has committed to funding "mostly rail" projects in the 2001 RTP,

4 but has failed to meet the minimum in the "Lifeline Transportation Program" intended to work in

5 tandem with the RTEP. "Its 2005 RTP seeks only $216 million in new revenues over 25

6 years ... a shortfall of well over a billion dollars." (FAC ~45.) A review of that 2005 RTP shows

7 no such shortfall, but rather that MTC already has committed $216 million to the LTN Program,

8 (2005 RTP at p. 55.). MTC's funding efforts are in the initial stages. Moreover, there is not even

9 an attenuated causal connection alleged between Plaintiffs here and any specific initiative in the

10 LTN. Finally, insofar as there was no commitment on behalf of MTC to provide the funds, any

11 potential complaint about lack of funding is unripe.

12

The verifiable facts also show that MTC has acknowledged and embraced many of AC

13 Transit's expansion projects. As noted above, in its RTEP MTC has programmed AC Transit's

14 proposed expansion projects. (Exh. A-002, 007, 014,021-022,034,038,057-59, 108-118; Exh.

15 B-OO1-021.) AC Transit itself acknowledges that MTC has been instrumental in directing funds

16 to its efforts to expand service in any number of its service corridors. (Exh.1-017.)

17

Plaintiffs also allege that MTC "did not distribute its full allocation of federal funds"

18 under two programs, CMAQ and STP." And, that in adopting TIP in 2004, MTC did not allocate

19 any of the $105 million in these funds to AC Transit despite the fact that AC Transit has projects

20 that could have been funded under the "strategic expansion" category. (FAC ~48, 16:12-19.)

21

As part ofMTC Resolution No. 3695, which is subject to judicial notice, MTC made

22 available $106.9 million in STP and CMAQ funds to regional projects when those funds became

23 available. (Exh. C-003-04.) This federal funding was unanticipated and available due mostly to

24 the region's compliance with state and federal deadlines. Funds were directed to several

25 categories of projects; one of which was strategic expansion as Plaintiffs note. What Plaintiffs

26 fail to mention is that the strategic expansion funding was directed solely to ready-to-go projects

27 already programmed in the STIP. (See Id. C-OI0-ll.) Because AC Transit did not have eligible

28 projects in the STIP, it did receive this additional funding.

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1

Accordingly, the judicially noticeable MTC resolutions demonstrate that Plaintiffs'

2 allegations regarding funding are completely off base. The Court should not accept them.

3

e. Service Cuts

4

AC Transit's Strategic Vision, cited by Plaintiffs, belies their contention regarding

5 causation. In their 2001 "Strategic Vision," AC Transit planned to maintain service levels

6 reinstated in 1999 and even add a small amount of service, based on anticipated funding through

7 Alameda County Measure B. (Id. at 1-012). However, even though the maintained and

8 increased services were funded by Measure B, according to AC Transit, AC Transit has cut

9 service levels by approximately 14% since 2003 because the revenues "have not been as robust as

10 [they had] planned" in their 2001 Strategic Vision (Id.) The Strategic Vision notes that ridership

l I o n AC Transit has "decreased significantly--primarily due to the poor economy and

12 unemployment." (Id. at 1-005). But the shortfall is "short-term setback[] associated with the

13 economic downturn." (Id. at 1-004.) AC Transit now considers the return of service and the

14 improvements envisioned in 2001 as Tier 2 of the Strategic Vision.

15

Thus, the realization of AC Transit's Strategic Vision depends on the revenues generated

16 from Alameda's half-cent sales tax (Measure B), unemployment factors, and the general

17 economy, factors over which MTC obviously has no control. Plaintiffs' contention that success

18 or failure of the Strategic Vision is solely dependant on funding from MTC is incomplete and

19 thus misleading, and therefore fails to establish causation.

20

f.

The Allegations Are Too Conclusory and Generalized For

This Court to Accept to Establish Causation.

21

22

Finally, the balance of Plaintiffs' allegations, which are general and conclusory, do not

23 help Plaintiffs meet their burden on standing.

24

For example, Plaintiffs allege generally that "through the power of the purse strings"

25 MTC decides which transit needs will be met and if so the quantity of quality of service.

26 Conversely it decides which transit opportunities will be denied." But Plaintiffs have not shown

27 any such denials for AC Transit. In addition, Plaintiffs allege that MTC "exercises direct control"

28 over at least 40% of AC Transit's budget, and that MTC "monitors the budgets of the transit

18
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1 operators within its jurisdiction, evaluating their service and overall performance," (FAC ~43,

2 23:13-4:14), but fail to say how. These allegations, which have no factual support, should not be

3 accepted. It is AC Transit that determines its fares, its policies, its schedules, and its priorities

4 under its enabling legislation. Cal. Pub. Util. Code §§ 24501 et seq., 24885.

5

Plaintiffs also claim that MTC "attaches conditions to the allocation and/or release of

6 essential funds, conditions that dictate the transit opportunities AC Transit may provide" by

7 requiring AC Transit to "match" funds. (FAC ~42, 12:23-28.) However, the claim that MTC

8 mandates a matching requirement is overly simplifying the complexities of the funding process.

9 For example, it is the federal government's requirement that transit operators "match" capital

10 funding allocations that it makes. See 49 U.S.C. § 5307(e) ("a grant of the Government for a

11 capital project (including associated capital maintenance items) under this section is for 80

12 percent of the net project cost ofthe project. A recipient may provide additional local matching

13 amounts....") Accordingly, by law MTC cannot appropriate these funds without a matching

14 contribution by local transit operators. !d.

15

Moreover, Plaintiffs allege in conclusory fashion that "AC Transit has reduced the quality

16 and quantity of service that had been previously available to Plaintiffs ...because ofMTC's

17 funding decisions, including decisions to deprive AC Transit of operating funds and/or

18 flexibility." (FAC ~43.) Conversely, Plaintiffs claim that "the amount of service that AC Transit

19 provides to Plaintiffs ...would grow if []MTC provided Plaintiffs with additional operating funds

20 and flexibility." (!d.) But, as explained above, the "flexibility" that Plaintiffs claim MTC

21 provides in preventive maintenance has not been denied AC Transit, but extended. In addition,

22 there are no factual allegations that MTC denies operating funds to AC Transit over which it has

23 any modicum of control. Accordingly, the Court should disregard these conclusory and

24 generalized allegations, which add nothing to the causation inquiry.

25

Finally, Plaintiffs allege that MTC plays a "determinative" role in the amount of subsidy

26 per passenger trip received by the riders of each of the region's transit operators. And they allege

27 that the subsidy has a "determinative effect" on the quantity and quality of service available to the

28 riders of that operator. (FAC ~~46-47.) Plaintiffs' allegation that MTC plays a "determinative"

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1 role in the subsidy each transit operator receives, however, is just too conc1usory to accept.

2 Western Mining Council v. Watt, 643 F.2d 618,624 (9th Cir. 1981). MTC does not control the

3 "subsidy per passenger trip" determination, as this ratio is comprised of elements, mandated by

4 state and federal law, over which MTC has no control. As the FAC alleges, "this figure is

5 calculated from data contained in the National Transit Database, which is maintained by the

6 Federal Transit Administration." (FAC at ~40.) Thus, saying that MTC controls the ratio is

7 overly simplistic and nonsensical.

8

Moreover, even if this Court takes Plaintiffs' description of the subsidy per passenger trip

9 as correct, Plaintiffs' argument fails because MTC has no control over the amount of the fare

10 charged. According to Plaintiffs, the ratio is a product ofthe fare minus the government subsidy.

11 Absolute subsidy amounts or percentage subsidy amounts are not meaningful statistics.

12 Assuming MTC had control over all the subsidies that are allocated, which it does not, MTC has

13 no control over how transit operators determine fares or on what services they use funds they

14 receive. Because AC Transit, BART and Caltrain have the power to determine what fares they

15 charge, MTC does not and cannot have any meaningful control over "subsidy per passenger trip."

16 Finally, during oral argument on MTC's first motion to dismiss, the Court already recognized that

17 the subsidy per trip computations were meaningless.

18

In sum, Plaintiffs' amendment to the Complaint does not sufficiently allege standing. The

19 specific examples they provide are belied by the facts in documents referenced in the complaint

20 and those subject to judicial notice. Moreover, the remainder ofthe allegations are too

21 conc1usory to accept. Accordingly, Plaintiffs have again failed to meet their burden.

22

2. Plaintiffs Still Cannot Demonstrate That The Relief They Seek From

MTC Will Redress Their Alleged Injuries

23

24

Plaintiffs also failed to cure the deficiencies in the FAC with respect to redressability

25 because they have not and cannot demonstrate that the relief they request will remedy their injury.

26 Simon, 426 U.S. at 41-46. "Relief that does not remedy the injury suffered cannot bootstrap a

27 plaintiff into federal court; that is the very essence ofthe redressability requirement." Steel Co. v.

28 Citizens!or a Better Environment, 523 U.S. 83, 107, 118 S.Ct. 1003, 1019, 140 L.Ed.2d

20
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1 210 (1998). Plaintiffs have no standing where it is purely speculative that a requested change in

2 government policy will alter the behavior of regulated third parties that are the actual cause of a

3 plaintiffs injuries. National Wrestling Coaches Ass'n v. Dept. ofEduc., 366 F.3d 930, 938 (D.C.

4 Cir. 2004).

5

In its Order, the Court found that Plaintiffs failed to meet this element in their Complaint

6 because it is "insufficiently clear whether a court order aimed at MTC would have remedied

7 Plaintiffs' quality of life injury because there are insufficient allegations that MTC determines in

8 significant part the extent to which AC Transit funds the services that Plaintiffs seek.. ,," (Order

9 at 10.) The Court noted that Plaintiffs alleged that "[i]fMTC refrained from its discriminatory

10 funding practices, it could fund transit. ..The complaint does not allege that MTC would likely do

11 so." Id.

12

Plaintiffs' attempted cure is to state generally that "[i]fMTC ceased its discriminatory

13 funding ...the result would be greater funding for AC Transit, much or all of which AC Transit

14 would use to provide improved transportation opportunities for Plaintiffs and members of the

15 Plaintiff Class." (FAC ~50, 17:15-18.) In addition, Plaintiffs conclusorily assert: "IfMTC did

16 not engage in its discriminatory funding .. .it would provide AC Transit with greater funding, and

17 AC Transit would improve and mitigate these inferior conditions." (FAC ~67, 23:12-18.)

18 (emphasis added).

19

Plaintiffs' suggestions that MTC somehow can control or should have controlled AC

20 Transit's fares, routes, or schedules, however, is incorrect. AC Transit is an independent public

21 entity, not an operating subsidiary ofMTC. Its Board is its "legislative body of the district and

22 determines all questions of policy." Cal. Pub. Util. Code § 24883. AC Transit's Board controls

23 "[a]ll matters and things necessary for the proper administration of the affairs of the district," and

24 "supervise[s] and regulate[s]" all property, facilities, and equipment, including "the fixing of

25 rates, rentals, charges, and classifications, and the making and enforcement of rules, regulations,

26 contracts, practices, and schedules." !d. §§ 24885, 24506. In addition, MTC's role and powers

27 are limited to that which is provided in its enabling legislation. See Cal. Gov. Code § 66500 et.

28 seq. Yet, even in the face of AC Transit's and MTC's enabling legislation, Plaintiffs allege that

21
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1 MTC should dictate district policy to AC Transit by conditioning the provision of operating funds 2 to AC Transit.5

3

This is not so. AC Transit's and MTC's powers are enumerated and limited by statute.

4 See Hayward Area Planning Ass 'n., Inc. v. Alameda Cty. Trans. Auth., 72 Ca1.App.4th 95, 104-

5 108,84 Ca1.Rptr.2d 744,749-751 (1999); City ofCeres v. City ofModesto, 274 Ca1.App.2d 545,

6 550, 79 Ca1.Rptr. 168, 170 (1969); Scott v. Common Council of City ofSan Bernardino, 44

7 Ca1.App.4th 684, 697-698, 52 Ca1.Rptr.2d 161, 170 (1996); Hubbard v. City ofSan Diego, 55

8 Ca1.App.3d 380, 127 Ca1.Rptr. 587 (1976), G.L. Mezzetta v. City ofAmerican Canyon, 78

9 Ca1.App.4th 1087, 1092, 93 Ca1.Rptr.2d 292, 295-296 (2000); Midway Orchards v. County of

10 Butte, 220 Ca1.App.3d 765, 783, 269 Ca1.Rptr. 796, 807 (1990). MTC's and AC Transit's

11 respective roles are clear. If the Legislature intended MTC to have substantial control over AC

12 Transit's routes, schedules, and fares, it would have repealed or modified AC Transit's powers.

13

In addition to being improper and possibly illegal for MTC to force AC Transit to use

14 funds in a certain way, or for a Court order to supersede AC Transit's enabling legislation,

15 Plaintiffs' redressability allegations also fail with respect to its references to AC Transit's

16 "Strategic Vision Plan." (FAC ~50, 17:18-19.) Plaintiffs allege that the "Strategic Vision policy

17 clearly states that AC Transit will implement its plan to the extent it receives the additional funds

18 through MTC that are needed to implement and operate the plan... Conversely, to the extent it

19 does not receive additional funds through MTC ...AC Transit will be unable to do so ... " (PAC

20 ~53, 27:18-4:19.) Plaintiffs go on to suggest that, without additional funds from MTC, AC

21 Transit's provision of services to Plaintiffs is likely to decline. (Id. at 19:5-7.)

22

This is an incomplete ifnot misleading reading of AC Transit's Strategic Vision. Notably

23 absent from the PAC is the progress that AC Transit already has made in achieving the goals in

24 the plan. This is a critical omission in terms of redressability because, as AC Transit itself

25 acknowledges, the "implementation of the [strategic] vision is already underway." (Exh. J-036.)

26 Also absent is acknowledgment of the assistance, by AC Transit's own account, that MTC

27 5 As noted above, MTC does not and cannot control how earmarked monies are used. Where federal, state or local law earmarks funds for specific purposes, MTC cannot override those legal
28 dictates.

22
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1 already provides to AC Transit in achieving its strategic vision, and that AC Transit does not rely

2 solely on MTC to achieve it. (Id. at J-017, J-036.)

3

First, it is clearly noted in the Introduction to the Strategic Vision that implementation of

4 Tier 1 was made possible through Measure B, a voter initiative--not an MTC funding decision.

5 (See e.g. J-004.) In terms of redressability, Plaintiffs' claim that the "Strategic Vision policy

6 clearly states that AC Transit will implement its plan to the extent that it receives the additional

7 funds through the MTC" (FAC at ~53 at 18:27-28) is unfounded. Nowhere does the Strategic

8 Vision rely on funds solely received through MTC. In fact, realization of the vision, according to

9 AC Transit's, relies on, for example, "local cities," "Caltrans," and unspecified "Public/private

10 partnerships." (J-036) Moreover, AC Transit, itself, has not identified all funding sources to

11 achieve their vision. (J-025).

12

Second, Plaintiffs erroneously imply that improvements ("on the 10 busiest East Bay

13 Corridors") set forth in the Strategic Vision are not being realized. For example, as to Tier 3,

14 Phase I, AC Transit announces that MTC "realized the importance of these Enhanced Bus

15 corridors, and have included them into the final" RTP and RTEP. The Telegraph/International/E.

16 14th Street Corridor has been included under Track One ofthe RTP, while Hesparian, Foothill and

17 MacArthur Boulevard Corridors have been included in the RTEP." (Exh. J-017.) The FAC

18 alleges these routes "serve Oakland," where Plaintiffs Darrensberg and Hain live. Thus, these

19 project routes are already programmed for funding. (See id.) There is nothing for the Court to

20 redress.

21

It is disingenuous to use this plan as an example to show the Court how it could redress

22 Plaintiffs' injuries where the AC Transit's plan already is in the process of being implemented

23 and, more importantly, it is clear that AC Transit's Strategic Vision is dependent on factors other

24 than those within MTC's purview. While more money from anyone source could translate into

25 more and/or better service to Plaintiffs, the Strategic Vision makes clear that MTC is but one

26 factor in the realization of AC Transit's Vision. Thus, Plaintiffs' speCUlating as to what a party

27 not before this Court 'would' do as opposed to 'could' is semantics. AC Transit's Strategic

28 Vision does not provide Plaintiffs the factual basis lacking in the original complaint.
23
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Case3:05-cv-01597-EDL Document45 Filed11/01/05 Page28 of 29

1 /1/

2 B.
3

The Applicable Statute of Limitations Limits the Bases for Plaintiffs' FAC In order to fonn the bases oftheir FAC, the alleged discrimination ofwhich Plaintiffs

4 complain under the Equal Protection Clause and Title VI must have occurred in the prescribed

5 time period. Taylor v. The Regents a/the Univ. a/California, 993 F.2d 710, 712 (upholding the

6 dismissal of plaintiffs' §§1981, 1983, 1985 and 2000d [Title VI] claims as barred by the state

7 statute oflimitations for personal injury actions). In California, that time period is two years.

8 Cal. Code of Civ. Proc. § 335.1. That two-year statute oflimitations applies to Plaintiffs'

9 injunctive claims. Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969 (9th Cir. 2004). Here, the only

10 allegations occurring within the limitations period are those that are contradicted by judicially

11 noticeable facts. For their other conclusory allegations, Plaintiffs either fail to provide a date, or

12 provide a date before April 2003, over two years before this action was filed.

13

Plaintiffs generally allege MTC has "historically engaged," (FAC at ~1) and "over many

14 years" (Id. at ~3) has channeled funds to BART and Caltrans at the supposed expense of AC

15 Transit. Plaintiffs' paragraphs 11, 12 and 13 lack any temporal scope whatsoever and in

16 paragraphs 15-16 Plaintiffs provide dates of 1989 and 2001. Plaintiffs' paragraph 36 provides no

17 time frames for MTC's alleged "actions or omissions." Likewise, in paragraphs 40-41, Plaintiffs,

18 without providing a time period, allege that: MTC "has in the past decided to deny or delay AC

19 Transit funding"; "take steps within [MTC's] power to provide AC Transit with additional

20 funds;" MTC "has in the past decided to deny or delay AC Transit funding"; and "has failed to

21 take steps within its power to provide AC Transit with additional funds, including operating

22 funds."

23

Similarly, paragraph 42 alleges that "MTC reduces the overall size of AC Transit's budget

24 by, inter alia, choosing not to allocate to AC Transit funds within MTC's control and choosing to

25 lobby for funding for projects that benefit riders of Caltrain or BART, to the exclusion of AC

26 Transit riders." In paragraph 43, Plaintiffs allege that "AC Transit has reduced the quality and

27 quantity of service that had previously been available to Plaintiffs and/or implemented fare

28 increases that injured Plaintiffs because ofMTC's funding decisions." Paragraph 44 states that

24
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1 Plaintiffs make generalized allegations without dates or specific legislation. Aside from being

2 unintelligible, there are no time limits alleged in these paragraphs.

3

Finally, in paragraphs 49-69, Plaintiffs provide no information that any of the alleged

4 conduct by MTC occurred within the two-year limitations period.

5

Other than those allegations that are simply shown to be false through judicially

6 noticeable materials or documents central to the complaint whose authenticity is not in dispute,

7 the FAC contains allegations wholly lacking in temporal frame or alleges discrimination

8 occurring outside of the statute of limitations. Accordingly, the FAC should be dismissed on this

9 basis.

10

v. CONCLUSION

11

For the foregoing reasons, Plaintiffs' Amended Complaint must be dismissed without

12 leave to amend.

13

14 DATED: November 1,2005 15 16 17 18 19

Hanson Bridgett Marcus Vlahos & Rudy,

LLP
By:

. AL

------~~----------------------
KIl\.10

Attome s for Defendant

Metropolitan Transportation Commission

20

21

22

23

24

25
26

27
28 25
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 Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page1 of 90

United States District Court For the Northern District of California

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7 FOR THE NORTHERN DISTRICT OF CALIFORNIA
8

9 SYLVIA DARENSBURG, et al.,
10 Plaintiffs,
11 v.
12 METROPOLITAN TRANSPORTATION
13 COMMISSION,

No. C-05-01597 EDL
FINDINGS OF FACT AND CONCLUSIONS OF LAW FOLLOWING COURT TRIAL

14

Defendant.

/

15

16

Plaintiffs Sylvia Darensburg and Vivian Hain are individuals of color, and Plaintiffs

17 Amalgamated Transit Union 192 and Communities for a Better Environment are organizations with

18 minority members, who use the bus system of the Alameda-Contra Costa Transit District (“AC

19 Transit”). Defendant Metropolitan Transportation Commission (“MTC”), is the Metropolitan

20 Planning Organization (“MPO”) for all twenty-six independent transit operators in the nine-county

21 Bay Area. In this class action, Plaintiffs contend that MTC makes funding decisions that adversely

22 affect AC Transit’s largely minority riders, in comparison to the riderships of the other largest

23 operators in the Bay Area. The seven largest operators, which collectively account for 95% of

24 transit riders in the Bay Area, are: (1) AC Transit; (2) Bay Area Rapid Transit District (“BART”);

25 (3) Peninsula Corridor Joint Powers Board (“Caltrain”); (4) Golden Gate Highway and

26 Transportation District (“GGT”); (5) San Francisco Municipal Railway (“Muni”); (6) San Mateo

27 County Transit District (“SamTrans”); and (7) Santa Clara Valley Transit Authority (“VTA”).

28

More specifically, Plaintiffs contend that three of MTC’s apparently neutral transportation

funding practices in fact divert funding from preserving and improving existing bus operations to

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United States District Court For the Northern District of California

1 costly expansion and capital rehabilitation of rail services, disproportionately harming AC Transit’s

2 predominantly minority bus riders, in violation of California Government Code section 11135.

3 Specifically, Plaintiffs challenge MTC’s: (1) selection and funding of rail expansion projects over

4 bus projects through its Regional Transit Expansion Program embodied in Resolution 3434; (2)

5 allocation of “committed” funds to capital rehabilitation instead of transit operations, and to capital

6 expansion instead of capital rehabilitation of the existing transit system; and (3) assignment of

7 “uncommitted” funds to offset projected capital rehabilitation shortfalls, but not operating shortfalls.

8 Plaintiffs argue that they have made a prima facie showing of disparate impact as to each of these

9 three practices, that MTC cannot meet its burden of proving necessity in response, and that even if

10 MTC has, Plaintiffs have shown equally effective but less discriminatory alternatives.

11

MTC disputes that Plaintiffs have established a prima facie case of disparate impact, and

12 argues that even if they have, MTC has met its burden of showing a legitimate justification. First,

13 MTC denies that it prioritizes rail expansion over maintenance and operations of the existing system.

14 MTC also argues that it does not have control over the allocation of most “committed” funds, and

15 that when it does have control over those funds, it has allocated funds for operations in the form of

16 preventive maintenance to AC Transit. Second, MTC argues that it has little control over the

17 allocation of “uncommitted” funds, and that it allocates the funds that it does control to cover

18 operating shortfalls. Third, MTC further argues that its practices are justified by its reliance on the

19 advice of the Partnership Board, which consists of representatives of federal and regional transit

20 agencies, including AC Transit, and environmental entities, by its scoring system for allocation of

21 committed funds that reflects the consensus of the Partnership Board, and by its “Fix it First” policy

22 focusing on maintenance of existing capital systems, among other reasons. Finally, MTC argues

23 that in response to its justification, Plaintiffs have not met their burden of showing an equally

24 effective alternative with a less racially disproportionate impact.

25

On August 21, 2008, the Court issued an order resolving the parties’ motions for summary

26 adjudication and for summary judgment. The Court denied Plaintiffs’ Motion for Summary

27 Adjudication on the issue of whether Plaintiffs had established as a matter of law a prima facie case

28 for disparate impact discrimination arising out of MTC’s failure to fund the operating shortfalls it

2

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United States District Court For the Northern District of California

1 identifies in the quadrennial Regional Transportation Plans, while funding capital shortfalls. The

2 Court granted in part and denied in part MTC’s Motions for Summary Judgment, holding that there

3 were triable issues of fact as to standing and disparate impact discrimination, but that there was no

4 triable issue of fact as to intentional discrimination.

5

This case was tried to the Court in October 2008. Because this case involved an array of

6 funding source and other acronyms familiar to the transit cognoscenti but not necessarily to the rest

7 of the public, the Court notes that a Joint Glossary of Terms prepared by the parties is available at

8 docket number 340. The parties also submitted joint findings of fact (Nos. 1-369) on August 29,

9 2008 (docket no. 291), October 3, 2008 (docket no. 346), October 8, 2008 (docket no. 353) and

10 October 21, 2008 (docket no. 364).1 After considering and weighing all the evidence and the

11 parties’ arguments, and having assessed the credibility of the witnesses, the Court enters the

12 following findings of fact and conclusions of law as required by Federal Rule of Civil Procedure

13 52(a).

14

The Court begins with a few preliminary observations. First, throughout the litigation of this

15 case, the Court has been impressed by the high level of advocacy on both sides of this dispute.

16 Counsel have conducted themselves professionally and respectfully in their interactions with the

17 Court and with each other during numerous court appearances and the three-week trial. The Court

18 also appreciates the parties’ responsiveness to the Court’s suggestions to stipulate to facts not

19 reasonably in dispute and to streamline presentation of this case at trial. The parties were well-

20 served by their counsel in this case. Second, the Court was also impressed by the sincere dedication

21 to meeting the needs of disproportionately minority riders of AC Transit on the part of Plaintiffs and

22 their witnesses. The Court was left with no doubt that AC Transit’s bus riders would benefit from

23 additional service and that many of them are burdened by fare hikes and service cuts, hampering

24 their efforts to get to work, medical appointments, and grocery shopping and to meet other important

25 needs. At the same time, the Court also came to appreciate the difficult challenge faced by MTC’s

26 public servants of meeting a wide array of complex transportation needs and competing priorities of

27

1

To the extent that joint findings are not explicitly set forth in the findings below, they are

28 incorporated by reference as if set out in full. The Court further notes that its conclusions of law may

also contain findings of fact.

3

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United States District Court For the Northern District of California

1 multiple operators throughout the Bay Area with limited and often highly restricted funds. The

2 Court found the fact witnesses on both sides to be sincere and generally credible, although

3 occasionally, as noted below, somewhat biased in their perceptions due to their particular roles.

4

Further, the Court found the expert witnesses to be highly qualified. The Court was

5 impressed by the extensive knowledge of Plaintiffs’ expert, Thomas Rubin, of transportation

6 planning and his concern with meeting the transit needs of underserved minority populations. As set

7 forth in more detail below, however, the Court found that a few of his comparisons of relative

8 funding and other matrices which he contended show unjustified disproportionate impact on AC

9 Transit riders were not persuasive because they did not treat all transit operators alike or focused

10 only on one type of comparison to the exclusion of other equally valid alternatives. Nor was the

11 Court persuaded that the transportation statute and planning documents that he pointed to required

12 the very strong, indeed paramount, priority on preserving existing urban bus operations that he

13 advocated, at the cost of meeting other important transportation needs that MTC is also mandated by

14 statute to consider. These other needs include, for example, a modern, integrated transit network

15 that aids smart growth, and lures commuters out of their single occupancy vehicles to improve air

16 quality. By the same token, the Court was not entirely persuaded by the testimony of MTC’s

17 planning expert, Dr. Robert Cervero, to the extent that he downplayed the importance of preserving

18 urban bus services. Similarly, although MTC’s statistician, Stefan Boedeker, provided a number of

19 illuminating comparisons, two of his graphs used inconsistent scales that made AC Transit’s funding

20 pattern look more similar to that of other operators than it really was.

21

Ultimately, as explained in detail below, the Court concludes that Plaintiffs have not proven

22 disparate impact discrimination in violation of the California statute. It is worth pointing out that the

23 Court’s conclusion is supported in part by MTC’s recent practice, commenced the same year that

24 this lawsuit was filed, of allowing more operating funds in the form of preventive maintenance to

25 flow to AC Transit than MTC allowed under its previous practice of reserving such funds for capital

26 rehabilitation only. Indeed, this lawsuit may have had some salutary impact on causing MTC to

27 refine such policies.

28 //

4

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United States District Court For the Northern District of California

1 FINDINGS OF FACT

2 Background

3 1. Created by the California Legislature in 1970, MTC is the transportation planning,

4

coordinating and financing agency for the nine-county San Francisco Bay Area. See Cal.

5

Gov’t Code §§ 66500 et seq.; Joint Proposed Findings of Fact and Conclusions of Law

6

(docket # 291) at ¶ 8.

7 2. MTC is not a transit operator. See Joint Proposed Findings of Fact and Conclusions of Law

8

(docket # 291) at ¶ 9.

9 3. MTC sets policy and makes funding decisions through its Board of Commissioners. See

10

Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 11.

11 4. MTC’s work is guided by a nineteen-member policy board. Fourteen commissioners are

12

appointed directly by local elected officials. In addition, two members represent regional

13

agencies, the Association of Bay Area Governments and the Bay Conservation and

14

Development Commission. Finally, three nonvoting members have been appointed to

15

represent federal and state transportation agencies and the federal housing department. See

16

Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 19.

17 5. MTC convenes three advisory committees: (1) the MTC Advisory Council; (2) the Elderly

18

and Disabled Advisory Committee; and (3) the Minority Citizens Advisory Committee. See

19

Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 27.

20 6. The Minority Citizens’ Advisory Committee (“MCAC”) advises MTC on issues of concern

21

to African-American, Hispanic, and Asian-American constituencies. MTC recently added

22

low-income interests to the MCAC’s portfolio. See Joint Proposed Findings of Fact and

23

Conclusions of Law (docket # 291) at ¶ 28.

24 7. MTC functions as both the regional transportation planning agency, a state designation, and

25

as the region’s MPO for federal purposes. It is responsible for regularly updating the

26

Regional Transportation Plan (“RTP”), a comprehensive blueprint for the development of

27

mass transit, highway, airport, seaport, railroad, bicycle and pedestrian facilities. See Joint

28

Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 12.

5

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United States District Court For the Northern District of California

1 8. MTC is the designated recipient of a variety of federal and state funding sources, and is

2

responsible for setting policies and making decisions about the allocation and use of those

3

funding sources that are within its control. See Joint Proposed Findings of Fact and

4

Conclusions of Law (docket # 291) at ¶ 30.

5 9. With the authority over the Bay Area’s transportation purse strings has come responsibility

6

for overseeing the efficiency and effectiveness of the region’s transportation system. MTC

7

monitors transit operators’ budgets, conducts performance audits and adopts a yearly

8

productivity/transit coordination improvement program to ensure that the region’s numerous

9

bus, rail and ferry systems are in sync in terms of their routes, fares, transfer policies,

10

schedules, passenger information and facilities. See Joint Proposed Findings of Fact and

11

Conclusions of Law (docket # 291) at ¶ 16.

12 10. In January of 1992, MTC convened the Bay Area Partnership Board. See Joint Proposed

13

Findings of Fact and Conclusions of Law (docket # 291) at ¶ 26.

14 11. The Bay Area Partnership Board is a confederation of the top staff of various transportation

15

agencies in the region (e.g., MTC, public transit operators, county congestion management

16

agencies, city and county public works departments, ports, Caltrans, U.S. Department of

17

Transportation) as well as environmental protection agencies. See Joint Proposed Findings

18

of Fact and Conclusions of Law (docket # 291) at ¶ 25.

19 Plaintiffs

20 12. The Class consists of Black, Hispanic, Asian or Pacific Islander, and American Indian or

21

Alaskan native individuals who are patrons of Alameda Contra Costa Transit District (AC

22

Transit). See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 1.

23 13. The named class representatives are Sylvia Darensburg and Vivian Hain. See Joint Proposed

24

Findings of Fact and Conclusions of Law (docket # 291) at ¶¶ 2, 4.

25 14. The Organizational Plaintiffs are Communities for a Better Environment (“CBE”) and

26

Amalgamated Transit Union Local 192 (“ATU”). ATU represents transit employees,

27

including bus, rail and ferry operators and advocates for its members primarily in the areas of

28

wages, benefits and working conditions. See Aug. 21, 2008 Order Denying Plaintiffs’ Mot.

6

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United States District Court For the Northern District of California

1 2 3 4 5 6 7 8 9 15. 10 11 12 13 14 15 16. 16 17 18 19 20 21 22 23 17. 24 25 26 27 28

for Summ. Adjudication; Granting in Part and Denying in Part Def.’s Mot. for Summ. J. (“Aug. 21, 2008 Order on Summ. Adjudication/Judgment”) at 15:23-25. ATU’s legislative agendas reveal that they are interested in, inter alia, increasing funding for public transit, including to “allow certain federal transit funds to be used for operating assistance.” See id. at 16:2-4. CBE is a “social justice organization with a focus on environmental health and justice,” focusing on “working class communities of color because those communities suffer the most from environmental pollution and toxics.” See id. at 16:5-7. The vision of CBE is to “protect the earth and human life for future generations.” See id. at 16:10-11. On February 1, 2005, MTC received a letter from Public Advocates, Inc., Communities for a Better Environment (CBE) and Amalgamated Transit Union (ATU) 192, alleging that MTC has historically engaged, and continues to engage in policies and practices “that benefit the disproportionately white riders of BART and Caltrain . . . at the expense of disproportionately minority riders of AC Transit.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 7. AC Transit’s change in transfer policy in 2001 limiting transfers to use within 90 minutes increased Plaintiff Sylvia Darensburg’s transit expenses by causing her to have to pay full fare more often. She also has been injured by increases in fares that stretch her limited budget. She has been unable to accept or keep certain attractive jobs as a result of inadequate AC Transit service. She has been docked pay at jobs due to being late because of unreliable AC Transit service. Increases in transit fares have also stretched her budget such that she has been unable to pay other bills on time. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 262(a). Ms. Darensburg would benefit from improvements to the International Boulevard/East Oakland and Hesperian routes. She would also benefit from improvements to routes such as San Pablo Avenue, Foothill/MacArthur, MacArthur/Oakland Airport, College Avenue/University, and Mission/Outer 14th Avenue routes. Signal improvements along these lines would also benefit her if they led to shorter travel times. See Supplemental Joint Findings of Fact (docket # 364) at ¶ 263(a).

7

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United States District Court For the Northern District of California

1 18. 2 3 4 5 6 7 19. 8 9 10 20. 11 12 13 14 15 16 17 18 21. 19 20 21 22 23 24 22. 25 26 27 28

Newer, low-floor vehicles would also benefit Ms. Darensburg because it would make it easier for her to grocery shop, as the buses would more easily accommodate a grocery cart, allowing her to reduce the number of trips she takes to the grocery store. This improvement would save her time, energy, and transportation costs. It would also make it easier for her to travel with her granddaughter because low-floor vehicles would more easily accommodate a stroller. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 263(b). Ms. Darensburg would also benefit from increased night and weekend service, in particular on Line 98, which would allow her to go to Wal-Mart to shop. See Supplemental Joint Findings of Fact (docket # 346) ¶ 263(c). Increases in AC Transit fares and recent limitations in use of transfers makes transit more expensive and more difficult for Plaintiff Vivian Hain to afford. Unreliable transit has also forced her to rely on unreliable cars that break down frequently and require frequent expensive repairs. Increases in AC Transit fares negatively impact her ability to buy food for herself and her family. Inadequate service has caused Ms. Hain to be subject to discipline at work for tardiness and put her at risk for failing to meet Welfare-to-Work requirements. Ms. Hain cannot afford to use BART regularly. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 262(b). Ms. Hain would benefit from enhanced AC Transit bus service and increased frequency of service in certain high traffic areas. In particular, she and her family would directly benefit from improvements to the Telegraph/International Boulevard/and College Avenue/University routes. Signal improvements along these lines would also benefit her and her children if they led to shorter travel times. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 263(d). In addition, newer low-floor vehicles would make it easier for Ms. Hain to grocery shop since the buses would more easily accommodate a grocery cart. This would allow her to make fewer trips to the grocery store overall which would reduce her transportation expenses, as well as saving her time and physical energy. See Supplemental Joint Findings of Fact (docket # 34) at ¶ 263(e).

8

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1 23. 2 3 4 5 6 7 24. 8 9 10 11 12 13 14 15 16 17 25. 18 19 20 21 22 26. 23 24 25 26 27 28

Class member Jose Casias has been forced to own a car, on which he must spend money for gas, maintenance, and insurance, due to inadequate bus service for getting to and from work. He has lost money due to having to leave work early to catch a bus before AC Transit service stops running at night. He and his mother find the fares difficult to afford, especially as they have increased over the last ten years. Further increases would force his family to spend less on food. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 262(c). Mr. Casias would benefit from enhanced routes/increased frequency of buses along the following routes: San Pablo Avenue, Telegraph/International Boulevard, Foothill/MacArthur, MacArthur/Oakland Airport, Shattuck/Alameda, College Avenue/University, Hesperian, 6th Street/Hollis, Sacramento/Market, and Mission/Outer E. 14th Avenue. Mr. Casias would also benefit from additional night and weekend service, because he would be able to take AC Transit to work instead of driving his car, and would be able to save considerably on gas money and mileage. Expanded night and weekend service would also make AC Transit a safer choice for his family and him, because it would mean less time waiting at bus stops. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 263(k). Class member Concepcion Chavez sometimes has to take a taxi to medical appointments because AC Transit buses are unreliable. The taxi costs much more than the bus. AC Transit’s fare increases since 1996 are not affordable for Ms. Chavez on her Social Security income. Because she can not afford the fares she needs, she has to ask her kids for money. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 262(d). Ms. Chavez would benefit from additional benches and shelters at AC Transit stops because it is difficult for her to walk and stand for long periods of time, and because it would provide shelter from rain and cold. Ms. Chavez would also benefit from low-floor buses because she believes it would be easier for her to get in and out of the bus with her arthritic knee. Ms. Chavez would also benefit from increased frequency of service so she could avoid planning her day around transit and could get to church on time. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 263(h).

9

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1 27. 2 3 4 28. 5 6 7 8 29. 9 10 11 12 13 14 15 16 17 18 19 20 30. 21 22 23 24 31. 25 26 27 28

Class member Octavio Hernandez has little flexibility in his budget. Mr. Hernandez has missed work because he could not afford AC Transit’s fares. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 262(e). Mr. Hernandez would benefit from greater frequency of service, especially on the 82/1, 40, and 43 lines. He believes increased priority for buses at traffic signals might reduce delays and make his travels more efficient. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 263(i). Class member Virginia Martinez has to pay two AC Transit fares to get to and from the grocery store since AC Transit limited transfer use to ninety minutes. She has received warnings at work due to tardiness because of too-infrequent bus service. She has pursued fewer job opportunities, including jobs that would provide more hours than her existing job, because it was too difficult and expensive to reach certain jobs on AC Transit. Ms. Martinez’s husband could not take a better-paying job further from home because it required AC Transit and BART to reach it, and the extra fares would have exceeded the increased wages. AC Transit fare increases cut into her family’s food budget, and her family’s wages do not keep up with AC Transit’s fare increases. She must spend money on gas and other vehicle expenses because AC Transit’s buses are too infrequent to be reliable transportation for her children to get to school. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 262(f). Ms. Martinez would benefit from covered bus stops and benches because they would provide shelter from the rain. She would also benefit from exclusive bus lanes and more frequent service because they would speed up her travel. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 263(j). Class member Rebecca Jones-White has had to pay for taxi trips to get home from work due to lack of AC Transit service late at night. She had to buy a car because AC Transit had insufficient service for her to get to and from work and to get where she needed to go on weekends. Ms. Jones-White has to incur significant expenses for gas, repairs, and insurance for her car because she can not get where she needs to on AC Transit. See Supplemental

10

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1

Joint Findings of Fact (docket # 346) at ¶ 262(g).

2 32. Ms. Jones-White would benefit from AC Transit buses running more often near her Union

3

Hall at night, so she could use AC Transit to get to and from work without waiting outside in

4

unsafe areas for long periods of time. Being more able to use AC Transit to get to and from

5

work would also save her money on gas. See Supplemental Joint Findings of Fact (docket #

6

346) at ¶ 263(f).

7 33. Class member Margo Robinson has been written up at work for tardiness due to reduced

8

frequency of the AC Transit bus she takes to get to work. She purchased a car because she

9

could not get to work early enough on the only AC Transit line near her home and because

10

the line does not go to the other places she needs to reach. Ms. Robinson’s car is expensive;

11

she spends money on maintenance, insurance, gas, and repairs that she would not have to

12

spend if she could reach the destinations she needs to reach on AC Transit’s bus. See

13

Supplemental Joint Findings of Fact (docket # 346) at ¶ 262(h).

14 34. Ms. Robinson would benefit from earlier service on the AC Transit lines that she could use

15

to get to work, including the 45 and the 82. She would also benefit from reinstatement of the

16

58 line, because it would allow her to connect more conveniently to many locations. Ms.

17

Robinson would also benefit from increased AC Transit service because it would allow her

18

to save money on gas and other expenses of owning and driving a car. See Supplemental

19

Joint Findings of Fact (docket # 346) at ¶ 263(g).

20 Regional Transportation Plan (“RTP”)

21 35. The RTP is the region’s long-range transportation plan over a twenty-five year time horizon.

22

The RTP is a prerequisite for the Bay Area’s transportation projects to qualify for federal

23

funds. See 23 U.S.C. § 134(g); Joint Proposed Findings of Fact and Conclusions of Law

24

(docket # 291) at ¶ 34.

25 36. MTC uses the terms “Regional Transportation Plan” and “long-range transportation plan”

26

interchangeably. See Joint Proposed Findings of Fact and Conclusions of Law (docket #

27

291) at ¶ 35.

28 37. MTC adopted its 1994 RTP in or about June, 1994, by Resolution 2687. See Joint Proposed

11

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1 2 38. 3 4 39. 5 6 40. 7 8 9 41. 10 11 42. 12 13 14 15 16 17 18 19 20 21 22 43. 23 24 44. 25 26 27 28 45.

Findings of Fact and Conclusions of Law (docket # 291) at ¶ 36. MTC adopted its 1998 RTP in or about October, 1998, by Resolution 3116. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 37. MTC adopted its 2001 RTP in or about December, 2001, by Resolution 3427. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 38. MTC adopted its current RTP, known as the “Transportation 2030 Plan,” in or about February, 2005, by Resolution 3681. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 39. Among other mandates for the planning process, MTC is required to “emphasize the preservation of the existing transportation system.” 23 U.S.C. § 134(h)(1)(H). Other mandates for the planning process set forth in the same statute require MTC to also: “support the economic vitality of the metropolitan area, especially by enabling global competitiveness, productivity, and efficiency,” “increase the safety of the transportation system for motorized and nonmotorized users,” “increase the security of the transportation system for motorized and nonmotorized users,” “increase the accessibility and mobility of people and for freight,” “protect and enhance the environment, promote energy conservation, improve the quality of life, and promote consistency between transportation improvements and State and local planned growth and economic development patterns,” “enhance the integration and connectivity of the transportation system, across and between modes, for people and freight,”and “promote efficient system management and operation.” 23 U.S.C. § 134(h)(1)(A)-(G). Since 1991, Congress has required long-range transportation plans to be fiscally constrained. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 42. In MTC’s 2005 RTP, Financially Constrained Element refers to programmed local, regional, state, and federal funds, as well as discretionary state and federal funds anticipated to be available over the long term of the Transportation 2030 Plan. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 46. The financially-constrained element of MTC’s 2005 RTP included approximately $118

12

Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page13 of 90

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1 2 3 4 5 6 46. 7 8 9 10 47. 11 12 48. 13 14 15 16 17 49. 18 19 20 21 50. 22 23 24 25 26 27 51. 28

billion. Of that sum, approximately $76 billion in funding is designated for transit, with the remainder for highways and local streets and roads. Of the transit portion, approximately $61 billion is designated for maintaining and operating the existing system, approximately $2 billion for system efficiency, and approximately $13 billion for transit expansion. See Joint Proposed Findings of Fact and Conclusions of Law (docket #291) at ¶ 48. MTC’s 2001 RTP included six goals, one of which was “equity,” which the RTP described as the goal of “achiev[ing] fairness in the planning, funding and operation of the region’s transportation system.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 50. MTC broadly follows a four-step process in preparing the financial plan of its RTP. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 86. In step one of the RTP process, for the revenue side, MTC staff prepares financial estimates for all transportation-related funding sources, including fund sources for transit, and assigns these dollars to transit projects based on current laws, policy, or historic funding levels, as applicable. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 87. In step two of the RTP process, for the expense side, MTC generally relies on data from the Short Range Transit Plans (“SRTP”) for the first ten years and uses standard escalating assumptions for operating or life cycles for capital for the remaining years of the long-range plan. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 88. MTC’s 2003 SRTP Guidelines provide in part that: “The [ten year] operations budget must be sustainable and generally balanced each year over the period of the SRTP, using currently available or reasonably projected revenues. . . . Where reductions in service levels are required in order to achieve a balanced operating budget, [the operator must] describe the reductions and assess their impact on the affected service areas and communities.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 85. At step three, MTC determines what funding sources are eligible for meeting the operation and maintenance needs, “taking into account eligibility restrictions on those funds. . . .” See

13

Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page14 of 90

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1 2 52. 3 4 5 6 53. 7 8 9 10 11 12 54. 13 14 15 16 17 18 19 20 21 22 55. 23 24 25 56. 26 27 28

Aug. 21, 2008 Order on Summ. Adjudication/Judgment at 21:27. At step four, after applying all eligible funds to operations and maintenance of the existing system, MTC applies any excess Track 1, or uncommitted, funding to prior committed projects or new projects in the long-range plan. See Aug. 21, 2008 Order on Summ. Adjudication/Judgment at 21:28-22:2. For the 1998 RTP, the 2001 RTP, and the Transportation 2030 plan, assignment of regional transportation plan revenues was consistent with MTC policies current at the respective time those plans were prepared, and provided the basis for projecting those revenue assignments forward into the future. MTC policies were assumed to be consistent throughout the respective twenty-five-year period encompassing each plan. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 89. As part of its process of preparing the financial plan of its RTP, MTC issues “calls for data” to the transit operators, requesting year-by-year projections over twenty-five years of operating costs and local operating revenues (in year of expenditure dollars), and an explanation of the assumptions on which these projections were based. MTC requests data on an existing “baseline” of service. The “baseline” includes only those services in operation, under construction, or that have full funding commitments, but not potential Regional Transit Expansion Program projects under MTC Resolution No. 3434. MTC instructs operators to use their most recent SRTP operating costs as a “baseline,” and to “trend off” of that baseline for the outer fifteen years. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 99. A “transit operating shortfall” in the RTP is the difference between an operator’s projected operating revenues and its projected operating costs. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 107. In or about 2004, MTC stated to the California Legislature that its draft 2005 RTP “projects a transit operating shortfall totaling $1.6 billion over 25 years that will need to be addressed with similar fare and service changes absent a new source of operating funds.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 108.

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1 57. MTC identified a projected operating shortfall for AC Transit of $360.5 million in the 1994

2

RTP. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 306.

3 58. MTC identified a projected operating shortfall for AC Transit of $136.2 million in the 1998

4

RTP. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 307.

5 59. MTC identified a projected operating shortfall for AC Transit of $36.7 million in the 2001

6

RTP. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 308.

7 60. MTC identified a projected operating shortfall for AC Transit of $64.4 million in the 2005

8

RTP. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 309.

9 Transit Operators

10 61. Alameda Contra Costa Transit District (“AC Transit”), Bay Area Rapid Transit District

11

(“BART”), Peninsula Corridor Joint Powers Board (“Caltrain”), Golden Gate Bridge

12

Highway and Transportation District (“GGT”), San Francisco Municipal Railway (“Muni”),

13

San Mateo County Transit District (“SamTrans”) and Santa Clara Valley Transit Authority

14

(“VTA”) are the seven largest operators in the region. See Joint Proposed Findings of Fact

15

and Conclusions of Law (docket # 291) at ¶ 53.

16 62. In the aggregate, these seven operators account for more than 95% of the Bay Area's total

17

annual transit trips. See Joint Proposed Findings of Fact and Conclusions of Law (docket #

18

291) at ¶ 54.

19 63. The annual ridership of these seven largest transit operators for Fiscal Year 2005-2006 was

20

approximately as follows: AC Transit (65.383 million); BART (101.578 million); Caltrain

21

(10.149 million); GGT (9.403 million); Muni (220.880 million); SamTrans (14.506 million);

22

VTA (40.187 million). See Joint Proposed Findings of Fact and Conclusions of Law (docket

23

# 291) at ¶ 55.

24 64. Minorities account for approximately 61% of the Bay Area’s aggregate transit ridership. The

25

proportion of minority riders on the seven largest transit operators is as follows: 78% of AC

26

Transit riders; 53% of BART riders; 50% of Caltrain riders; 38% of GGT riders; 58% of

27

Muni riders; 70% of SamTrans riders; and 70% of VTA riders. See Joint Proposed Findings

28

of Fact and Conclusions of Law (docket # 291) at ¶ 56.

15

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1 65. 2 3 4 66. 5 6 67. 7 8 9 68. 10 11 12 69. 13 14 70. 15 16 17 71. 18 19 20 72. 21 22 23 73. 24 25 26 27 74. 28

AC Transit connects with nine other bus systems, twenty-one BART stations, six Amtrak stations, and three ferry terminals. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 63. AC Transit was created by statute. See Cal. Public Utilities Code §§ 24561 et seq.; Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 64. AC Transit’s patrons in Contra Costa County include a higher percentage of white riders than AC Transit’s patrons in Alameda County. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 65. In or about 2001, the AC Transit Board of Directors adopted a policy document entitled, “Strategic Vision: A World Class System for the East Bay” (“Strategic Vision”). See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 66. AC Transit has published an SRTP that contains the Strategic Vision. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 67, 69. AC Transit’s Strategic Vision describes a tiered approach to “accomplish the goal of increasing ridership to about 85 million by 2005-06, then rising to 100 million by 2010.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 72. The first tier is known as the Financially Constrained Operating Plan (“FCOP”), “which is based on anticipated revenue from existing sources.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 73. Bay Area Rapid Transit (“BART”) operates rail service consisting of five routes to fortythree stations in four counties. See Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 312. According to BART’s STRP for FY 2003-2012, “[t]he Bay Area economy began to slow in late 2000, mid-way through FY01, and BART ridership declined as a result.” See Trial Exhibit (“Tr. Ex.”) 1172, Chap. 3, p. 3; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 315. According to BART’s SRTP for FY 2005-2014, BART ridership, after growing at record rates for several years, decreased with the Bay Area economic downturn from FY02 through

16

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1 2 3 4 75. 5 6 7 76. 8 9 10 77. 11 12 78. 13 14 79. 15 16 17 18 19 80. 20 21 81. 22 23 24 82. 25 26 27 83. 28

FY03. BART reported that much of the ridership decrease was attributable to the Bay Area economy, hard hit by the loss of technology jobs and by the terrorist attacks of September 11, 2001. See Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 325. According to BART’s SRTP for FY 2005-2014, “BART’s ridership is often directly impacted by the health of the economy.” See Tr. Ex. 1898, p. 3-6; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 328. Caltrain is a train system operating in San Francisco, San Mateo and Santa Clara counties. See Tr. Ex. 667 at 32-34. The Joint Powers Board, consisting of Muni, SamTrans and VTA, took over ownership of Caltrain in July 1992. See id. Caltrain lost 4.25% of its ridership in FY 2001-2002 and 11.85% in FY 2002-2003. See Tr. Ex. 1166 at 4-1. Caltrain cut service after the 2002-2003 recession. See Reporter’s Transcript (“RT”) 549:1218. In or about June 2004, Caltrain began to run eighty-six trains each weekday, including ten express trains known as “Baby Bullet” trains between San Francisco and San Jose. See Tr. Ex. 219. Weekend service was also restored at that time, with thirty-two Saturday trains and thirty Sunday trains. See id. Service increased in July 2005, when Caltrain began running ninety-six trains each weekday, including twenty-two Baby Bullet trains. See id. Since the Baby Bullet opened, ridership has increased on Caltrain by more than 50%. See RT 884:25-885:4. GGT is the smallest of the seven largest operators in terms of number of passengers carried per year. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 57. GGT owns the Golden Gate Bridge, which provides GGT with toll revenues as a source of operating funding. Demand for GGT bus services has fallen by 25% since 2000-2001. See RT 510:16-22. In late 2001 and early 2002, the economy contributed to GGT’s projection of a revenue shortfall of one billion dollars over ten years. See RT 972:18-973:19. GGT developed a

17

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1 2 3 84. 4 85. 5 6 86. 7 8 9 87. 10 11 12 88. 13 89. 14 90. 15 16 91. 17 18 19 92. 20 93. 21 22 94. 23 24 95. 25 26 27 28

strategic plan to address the projected shortfall, which was updated in 2002, and included service cuts. See RT 973:20-974:15. GGT had service cuts after the 2002-2003 recession. See RT 549:4-5. Since fiscal year 2004, GGT has increased service because ridership increased. See RT 979:17-20. The San Francisco Municipal Transportation Agency is composed of San Francisco Municipal Railway (“Muni”) and the Department of Parking and Traffic. See http://www.sfmta.com/cms/ahome/indxabmu.html. Muni served approximately 217 million riders in FY 2006-2007. See Stipulation Regarding Ridership, Revenue Vehicle Miles, and Revenue Vehicle Hours of Seven Largest Operators (docket # 371) at Ex. C. Muni had service cuts after the 2002-2003 recession. See RT 549:8-9. Muni receives parking-related revenues. See RT 927:9-11. In 2004, Muni had a $13 million shortfall that was covered with a fare increase, parking fee and fine increases, as well as staff reductions. See Tr. Ex. 1178 at 66. SamTrans provided bus service to approximately 14.5 million riders in San Mateo County in FY 2006-2007. See Stipulation Regarding Ridership, Revenue Vehicle Miles, and Revenue Vehicle Hours of Seven Largest Operators (docket # 371) at Ex. C. SamTrans cut service after the 2002-2003 recession. See RT 549:6-7. In 2003, SamTrans restructured their local service to provide feeder service to the new BART extension. See RT 417:4-22. SamTrans’s ridership stabilized in FY 2007 due to some rebound in the economy. See Tr. Ex. 1902 at 1. On June 12, 2002, the Board of Directors for SamTrans adopted certain bus service changes comprising the elimination of some routes, the combination of other routes and adjusted frequencies. The Board of Directors adopted the changes with the understanding that staff would be authorized to implement the changes as of August 25, 2002. See Tr. Ex. 1920; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 369.

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1 96. 2 3 97. 4 5 98. 6 7 99. 8 9 10 11 12 100. 13 14 15 101. 16 17 18 19 102. 20 21 22 23 24 103. 25 26 27 28

VTA operates bus and light rail service. See Tr. Ex. 1913; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 342. VTA is the Congestion Management Authority (“CMA”) for Santa Clara County. See Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 343. VTA has statutory authority to enact sales and use taxes if so authorized by the voters. See Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 345. The VTA Board of Directors on August 9, 2000 voted to place a half-cent transit sales tax, Santa Clara County 2000 Measure A, on the November 7, 2000 General Election ballot. The voters passed the tax, which is dedicated to specified public transit capital improvement projects and operations in Santa Clara County, including the BART extension to Silicon Valley. See Tr. Ex. 1914; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 346. On June 15, 2006, the VTA Board approved the 2000 Measure A Revenue and Expenditure Plan, a $21.6 billion capital and operations program. See Tr. Ex. 1180 at 4; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 348. Approximately 18.5% of 2000 Santa Clara County Measure A sales-tax revenues are designated annually for operating purposes, which VTA projected to be $6.869 million in FY 2006 and $28.815 million in FY 2007. See Tr. Ex. 1180 at 6-7; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 349. VTA reported to MTC in its Mini-SRTP for FY 2007-2016 that “the addition of Measure A Operating Assistance” allows VTA “to project a reduction of Federal Preventive Maintenance in FY 2008 to levels consistent with pre-recession numbers, so that it may reinstate its local capital program.” See Tr. Ex. 1180 at 6, § 1.3; Tr. Ex. 1181 at 54; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 350. On May 2, 2002, the VTA Board of Directors made a finding that a fare increase was necessary to meet operating expenses and to fund capital projects necessary to maintain service within the existing service area, while maintaining minimum required financial reserves, and adopted Resolution No. 02.05.15 establishing new rates and fares for VTA bus, light rail, and paratransit services effective July 1, 2002. See Tr. Ex. 1915; Third

19

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1 2 104. 3 4 105. 5 6 106. 7 8 9 10 11 107. 12 13 14 108. 15 16 17 109. 18 19 20 110. 21 22 23 111. 24 25 26 27 28

Supplemental Joint Findings of Fact (docket # 364) at ¶ 354. VTA implemented a 5% service reduction in July 2002. See Tr. Ex. 1183, p. 2-8; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 355. VTA implemented a 9% service reduction in April 2003. See Tr. Ex. 1183, p. 2-8; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 357. VTA reported in its SRTP for FY 2004-2013 that the high rate of unemployment in Santa Clara County had a dramatic impact on transit ridership. VTA reported in its SRTP for FY 2004-2013 that ridership trends closely mirror unemployment trends -- as unemployment increases, ridership declines. See Tr. Ex. 1183, p. 2-8; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 359. VTA bus ridership declined 13% between FY 2001-02 and 2002-03. VTA reported in its SRTP for FY 2004-2013 that the decline was attributed to the “weak local economy.” See Tr. Ex. 1183, p. 2-5; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 360. VTA light rail ridership declined 22% between FY 2001-02 and 2002-03. VTA reported in its SRTP for FY 2004-2013 that the decline was attributed to the “weak local economy.” See Tr. Ex. 1183, p. 2-5, 2-7; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 361. VTA reported in its SRTP for FY 2004-2013 that after 2001, declines in bus and light rail productivity were primarily due to the poor performance of the local economy. See Tr. Ex. 1183, p. 2-8; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 362. VTA reported in its SRTP for FY 2004-2013 that “[i]n excess of 200,000 jobs have been lost in our community.” See Tr. Ex. 1183, p. 2-8; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 363. VTA reported in its SRTP for FY 2004-2013 that “[b]etween FY 1997 and FY 2001, VTA bus and light rail passengers per scheduled revenue hour steadily declined for several reasons. These were years of system expansion, and it is very difficult for new services to be as productive as the core services that were already in place. Added to that, the most highly productive markets were already being served.” See Tr. Ex. 1183 at 2-7; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 364.

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1 112. On September 12, 2008, VTA reported a rise in both bus and rail ridership with average

2

weekday ridership being at the highest levels since August 2002. See Tr. Ex. 1917; Third

3

Supplemental Joint Findings of Fact (docket # 364) at ¶ 365.

4 113. In November 2001, the VTA and BART Boards of Directors approved “a cooperative

5

agreement regarding institutional, project implementation and financial issues related to the

6

BART extension.” See Tr. Ex. 1181, p. 78; Tr. Ex. 1182, p. 74; Tr. Ex. 1183, p. 4-23; Third

7

Supplemental Joint Findings of Fact (docket # 364) at ¶ 366. VTA reported in its SRTP for

8

FY 2004-2013 that it is “seeking to close the gap in the regional transportation network by

9

providing an extension of the Bay Area Rapid Transit (BART) system to Silicon Valley.”

10

See Tr. Ex. 1183, p. 4-23; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 366.

11 114. BART reported in its SRTP for FY 2008 through FY 2017 that: “VTA is providing the

12

funding support for all BART costs related to support work for the Silicon Valley Rapid

13

Transit project. BART and VTA will continue to work towards the completion of the

14

proposed BART to Santa Clara County Extension, with VTA taking the lead in financing and

15

completing the project planning, design and construction.” See Tr. Ex. 1898, p. 5-22; Third

16

Supplemental Joint Findings of Fact (docket # 364) at ¶ 367.

17 115. The revenue from the one-eighth cent sales and use tax that was proposed by the VTA Board

18

of Directors and approved by the voters on November 4, 2008 can be used only to fund the

19

operation, maintenance and future capital reserve for the BART Extension to Santa Clara

20

County. See VTA Board Resolution No. 08.08.23,

21

http://www.vta.org/bart/documents/other/adopted_resolution_08_08_23.pdf); see also

22

http://www.vta.org/bart; Third Supplemental Joint Findings of Fact (docket # 364) at ¶ 368.

23 MTC Demographic Survey

24 116. In 2006, MTC commissioned a region-wide demographic survey of Bay Area transit

25

ridership (“Demographic Survey”). See Joint Proposed Findings of Fact and Conclusions of

26

Law (docket # 291) at ¶ 58.

27 117. In or about June 2007, MTC issued a final report entitled “MTC Demographic Survey, Phase

28

One” (“the 2007 Report”). See Joint Proposed Findings of Fact and Conclusions of Law

21

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(docket # 291) at ¶ 59.

2 118. The 2007 Report reports the findings of Phase One of a survey of the ridership of riders of

3

fixed-route transit service provided by approximately twenty Bay Area transit operators. See

4

Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 61.

5 119. The MTC Demographic Survey was the first demographic survey of the riderships of Bay

6

Area transit operators that MTC had prepared, commissioned or conducted. See Joint

7

Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 62.

8 120. Since at least as early as September 2000, MTC has annually published a report entitled

9

“Statistical Summary of Bay Area Transit Operators.” See Joint Proposed Findings of Fact

10

and Conclusions of Law (docket # 291) at ¶ 77.

11 121. MTC's “Statistical Summary” publication provides, for each Bay Area transit operator, a

12

variety of data on operating budgets and service levels. Among other things, it reports

13

annual ridership, annual revenue vehicle miles and hours, and operating budget. See Joint

14

Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 78.

15 Lifeline Transportation Network

16 122. In or about December 2001, MTC adopted the Lifeline Transportation Network Report as a

17

part of the "Blueprint element" of the 2001 RTP. See Joint Proposed Findings of Fact and

18

Conclusions of Law (docket # 291) at ¶ 235.

19 123. The "Blueprint" element of the 2001 Regional Transportation Plan was "MTC's advocacy

20

document for new transportation revenues" to fund key transportation projects. See Joint

21

Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 248.

22 124. The purpose of the Lifeline Transportation Network Report was to assess the current ability

23

of the fixed route transit system to serve low-income communities in the region. See Joint

24

Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 236.

25 125. The Lifeline Transportation Network Report, which was included in the 2001 RTP, defined a

26

network of lifeline transit routes identified by MTC as critical to meeting the transportation

27

needs of low income people in the San Francisco Bay Area. See Joint Proposed Findings of

28

Fact and Conclusions of Law (docket # 291) at ¶ 237.

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1 126. The Lifeline Transportation Network Report estimated that, assuming a fixed route solution,

2

a total of 1.55 million service hours per year of additional service would be needed to fill the

3

gaps identified in the Lifeline Transportation Network. See Joint Proposed Findings of Fact

4

and Conclusions of Law (docket # 291) at ¶ 241.

5 127. The Lifeline Transportation Network Report identified as a “first priority” supporting “the

6

current network of transit routes that effectively serve low-income communities.” See Joint

7

Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 242.

8 Equity Analysis

9 128. In the Equity Analysis of its 2001 RTP and its 2005 RTP, MTC analyzed “Communities of

10

Concern” that were defined on the basis of proportional geographic concentrations of

11

minority populations and low-income populations in “Regional Travel Analysis Zones”

12

(“RTAZs”). See Supplemental Joint Findings of Fact (docket # 346) at ¶ 257.

13 129. RTAZs are small area neighborhoods or communities that serve as the smallest geographic

14

basis for travel demand modeling. See Supplemental Joint Findings of Fact (docket # 346) at

15

¶ 253.

16 130. Communities of Concern, as defined in the 2001 and 2004-05 Equity Analyses, are found in

17

each of the nine Bay Area Counties. See Supplemental Joint Findings of Fact (docket # 346)

18

at ¶ 257.

19 131. The 2005 RTP Equity Analysis included an RTAZ as part of a community of concern if 30%

20

or more of the households within that zone are below 200% of the poverty level because

21

using this threshold places an emphasis on evaluating areas with significant concentrations of

22

low-income households. Also, as 50% of the Bay Area is non-white (according to the 2000

23

U.S. Census data used in the 2004-05 Equity Analysis), an RTAZ was also included as a

24

community of concern if 70% or more of the persons in the households were of the following

25

descent: African American, Asian American, Hispanic or Latino, American Indian or Alaska

26

Native, Native Hawaiian or Other Pacific Islander, or Multi- Racial (two or more races).

27

These two thresholds of 30% and 70% were also used to define a community of concern in

28

the 2001 equity analysis. The 30%/70% thresholds together represent 33% of the Bay Area

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population. See Supplemental Joint Findings of Fact (docket # 346) at ¶ 252.

2 Funding Types

3

Resolution 3434

4 132. Resolution 3434 is also known as the Regional Transit Expansion Program (“RTEP”).

5

Resolution 3434 consists of a list of high-priority rail and express/rapid bus improvements to

6

serve the Bay Area's most congested corridors. MTC adopted Resolution 3434 in December

7

2001 to establish clear priorities for the investment of transit expansion funds. See Joint

8

Glossary at 13.

9 133. MTC’s 2001 RTP states that: “The cornerstone of this RTP is the Regional Transit

10

Expansion Program – adopted by the Commission as Resolution 3434 – which calls for a

11

nearly $11 billion investment in new rail and bus projects . . . . Resolution 3434 is the

12

successor to MTC's Resolution 1876, which was adopted in 1988 and delivered . . .

13

improvements [such] as the BART extensions to Pittsburg/Bay Point and Dublin/Pleasanton,

14

the Tasman light-rail extension in Silicon Valley, and the . . . BART extension to [SFO].”

15

See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 208.

16 134. Resolution No. 3434 is a strategic long-range master plan. The plan contemplates that MTC

17

would find additional sources of funds to fully fund the projects in the plan. In order to be

18

included in the RTP, however, the project would have to have full capital funding and its

19

transit agency must demonstrate an ability to operate the increase in service. If a project had

20

a capital shortfall, it could not be included in the RTP. See RT 1028:3-19.

21 135. For Resolution No. 3434, the funding projections are long range projections which are

22

expected to take twenty-five to thirty years to fulfill. See RT 961:1-12.

23 136. Resolution 3357 sets forth the criteria MTC adopted to govern the selection of projects for

24

Resolution 3434. See RT 423:4-10; Tr. Ex. 104. In Resolution 3357, MTC formulated

25

different selection criteria for bus projects than for rail projects. See RT 1255:8-10; Tr. Ex.

26

104, Attachment A. When Resolution No. 3434 was originally adopted in 2001, MTC issued

27

a call for projects. Projects were to be judged by criteria adopted in Resolution No. 3357,

28

which fell into two main categories. First, there were financial-based criteria which assessed

24

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1 2 3 4 5 137. 6 7 8 9 10 11 138. 12 13 14 15 16 17 18 19 139. 20 21 22 140. 23 24 25 141. 26 27 28

whether a sponsor already had funds, whether federal, state and/or local, committed to the project. Second, there were performance-related criteria, which assessed the relationship of the project to land-use goals, connectivity with other systems, and ability to fill gaps in the transit network. See RT 1012:2-1013:25; Tr. Ex. 1456. For a bus project to be included in Resolution 3434, Resolution 3357 required a demonstration that the bus project could effectively address congestion relief by providing a clearly attractive (i.e., faster and/or more convenient) alternative to single occupancy vehicles. The same criteria was not listed in the requirements for rail projects, although MTC assumed that rail projects would satisfy this requirement. See RT 1256:17-1258:3; Tr. Ex. 104, Attachment A. MTC issued a call for project candidates specifically instructing operators to submit projects based on these criteria. See RT 423:14-17. One of the evaluation criteria in Resolution 3357 was cost-effectiveness, as rated on a scale of high, medium, or low. See RT 424:4-9, 1256:3-5; Tr. Ex. 104, Attachment A, Section A. MTC assigned a high cost-effectiveness score to projects with a capital cost of $0 to $15 per new rider. See RT 424:10-12. However, a high rating on the cost-effectiveness scale was not a prerequisite to a project's inclusion in Resolution 3434 and several Resolution 3434 projects had low efficiency ratings. See RT 424:13-21. When formulating Resolution 3434, MTC intended to include bus projects to “provide transitional express bus services more quickly in corridors where rail service is planned but not deliverable for many years.” See RT 1258:4-1259:7; Tr. Ex. 104 at MTCP151108. MTC recognizes that express bus projects can be completed more quickly than new rail extensions, and generally require a much smaller capital investment. See RT 1259:8-1260:22. AC Transit requested funds from MTC for the 2001 RTEP for the Berkeley-Oakland-San Leandro Bus Rapid Transit, Phase 1 Project. See RT 425:23-426:6; Tr. Ex. 103 at MTCP000982; see also RT 116:18-117:9; 117:24-118:2. The total capital cost of that project was approximately $104 million in 2001 dollars. See RT 426:7-10; Tr. Ex. 103 at

25

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1 2 3 4 5 6 7 8 142. 9 10 11 12 13 143. 14 15 16 17 18 19 20 21 144. 22 23 24 145. 25 26 27 146. 28

MTCP000982. That service area is largely minority and predominantly low-income. See Spencer Dep. of 09-10-07 at 65:21-66:4. AC Transit sought funding for that project to contribute to improved mobility for area residents and greater access to jobs. See id. at 66:12-21. AC Transit received some money for that project, but MTC did not allocate the full amount requested by AC Transit. See id. at 66:22-67:2. The project is currently not fully funded. See id. at 67:3-6. AC Transit has plans to go forward with the improvements if it receives full funding. See id. at 67:7-10. AC Transit also requested funds from MTC in the 2001 RTEP for the AC Transit/ Oakland/San Leandro Bus Rapid Transit, Phase Two (International Boulevard - East 14th Street) Project. See RT 426:13-17; Tr. Ex. 103 at MTCP000985; see also RT 116:18-117:9; 118:5-8. The total capital cost of that project was approximately $270 million in 2001 dollars. See RT 426:18-20; Tr. Ex. 103 at MTCP000985. AC Transit also requested funds from MTC in the 2001 RTEP for the AC Transit Enhanced Bus/Rapid Transit, Miscellaneous Corridors project. See RT 426:21-25; Tr. Ex. 103 at MTCP000988. AC Transit submitted a proposal for eight miscellaneous corridors set forth in the Strategic Vision Plan chart, including San Pablo Avenue, Telegraph/International Boulevard/East 14th, MacArthur Boulevard and Hesperian/Mission/East 14th. See RT 116:18-117:4, 118:14-17, 162:18-24; Tr. Ex. 582 at Table ES-1. The total capital cost of that project was approximately $906 million in 2001 dollars. See RT 427:1-6; Tr. Ex. 103 at MTCP000988. AC Transit’s funding requests under Resolution 3434 were close to a billion dollars. See RT 119:8. In 2001, Resolution 3434 ultimately provided just above $200 million for AC Transit's projects. See RT 119:5-12. As adopted in 2001, Resolution No. 3434 included nineteen projects with a total projected capital cost of $10.519 billion in 2001 dollars. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 213. As adopted in 2001, Resolution No. 3434 included five BART projects: BART to Warm Springs; Warms Springs to San Jose; Oakland Airport Connector; East Contra Costa Rail

26

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1 2 3 147. 4 5 6 148. 7 8 9 10 149. 11 12 13 14 15 16 17 18 19 150. 20 21 22 23 24 25 26 27 28 151.

Extension; and Tri-Valley Rail Extension. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 214. As adopted in 2001, Resolution No. 3434 included three Caltrain projects: Caltrain Rapid Rail/Electrification; Caltrain Express, Phase 1; and Caltrain Express, Phase 2. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 215. As adopted in 2001, Resolution No. 3434 included two AC Transit projects: AC Transit Oakland/San Leandro Bus Rapid Transit, Phase 1 (Enhanced Bus); and AC Transit Enhanced Bus, Hesperian/Foothill/MacArthur corridors. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 216. As adopted in 2001, Resolution No. 3434 projected the total project cost of the following projects, in 2001 dollars, as follows: (1) BART to Warm Springs: $634 million; (2) BART, Warms Springs to San Jose: $3.710 billion; (3) BART Oakland Airport Connector: $232 million; (4) BART East Contra Costa Rail Extension: $345 million; (5) BART Tri-Valley Rail Extension: $345 million; (6) Caltrain Rapid Rail/Electrification: $602 million; (7) Caltrain Express, Phase 1: $127 million; (8) Caltrain Express, Phase 2: $330 million; (9)AC Transit Oakland/San Leandro Bus Rapid Transit, Phase 1 (Enhanced Bus): $151 million; and (10) AC Transit Enhanced Bus, Hesperian/Foothill/MacArthur corridors: $90 million. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 217. As adopted in 2001, Resolution No. 3434 projected the capital shortfall for the following projects, in 2001 dollars, as follows: (1) BART to Warm Springs: none; (2) BART, Warms Springs to San Jose: none; (3) BART Oakland Airport Connector: none; (4) BART East Contra Costa Rail Extension: $99 million; (5) BART Tri-Valley Rail Extension: $145 million; (6) Caltrain Rapid Rail/Electrification: none; (7) Caltrain Express, Phase 1: none; (8) Caltrain Express, Phase 2: $190 million; (9) AC Transit Oakland/San Leandro Bus Rapid Transit, Phase 1 (Enhanced Bus): none; (10) AC Transit Enhanced Bus, Hesperian/Foothill/MacArthur corridors: $63 million. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 218. As amended in 2006, Resolution No. 3434 included 20 projects (18 pending completion and

27

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1 2 3 152. 4 5 6 7 8 153. 9 10 11 12 154. 13 14 15 16 155. 17 18 19 20 21 22 23 24 25 156. 26 27 28

two open for service), with a total projected capital cost of $13.503 billion in 2006 dollars. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 220. As amended in 2006, Resolution No. 3434 included five BART improvement projects: BART to Warm Springs; BART, Warms Springs to San Jose/Santa Clara; BART/Oakland Airport Connector; East Contra Costa BART Extension (eBART); Tri-Valley Transit Access Improvements to/from BART. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 221. As amended in 2006, Resolution No. 3434 included two projects that were open for service: Caltrain Express: Baby Bullet and Regional Express Bus. As amended in 2006, Resolution No. 3434 included two Caltrain projects that were not yet open for service: Caltrain Electrification; and Caltrain Express: Phase 2. See Tr. Ex. 98 at MTCP239004. As amended in 2006, Resolution No. 3434 included two AC Transit projects: AC Transit Berkeley/Oakland/San Leandro Bus Rapid Transit; and AC Transit Enhanced Bus, Grand-MacArthur corridor. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 223. As amended in 2006, Resolution No. 3434 projected the total capital cost of the following projects, in 2006 dollars, as follows: (1) BART to Warm Springs: $686 million; (2) BART, Warms Springs to San Jose/Santa Clara: $4.792 billion; (3) BART/Oakland Airport Connector: $350 million; (4) East Contra Costa BART Extension (eBART): $407 million; (5) Tri-Valley Transit Access Improvements to/from BART: $464 million; (6) Caltrain Electrification: $471 million; (7) Caltrain Express, Phase 2: $250 million; (8) AC Transit Berkeley/Oakland/San Leandro Bus Rapid Transit: $175 million; and (9) AC Transit Enhanced Bus, Grand-MacArthur corridor: $68 million. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 224. As amended in 2006, Resolution No. 3434 projected the capital shortfall for the following projects, in 2006 dollars, as follows: (1) BART to Warm Springs: none; (2) BART, Warms Springs to San Jose/Santa Clara: none; (3) BART/Oakland Airport Connector: none; (4) East Contra Costa BART Extension (eBART): none; (5) Tri-Valley Transit Access Improvements

28

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1 2 3 4 5 157. 6 7 8 9 10 11 12 13 14 158. 15 16 159. 17 18 19 20 21 22 23 160. 24 25 26 27 28

to/from BART: none; (6) Caltrain Electrification: $94 million; (7) Caltrain Express, Phase 2: $66 million; (8) AC Transit Berkeley/Oakland/San Leandro Bus Rapid Transit: none; and (9) AC Transit Enhanced Bus, Grand-MacArthur corridor: $52 million. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 225. The 2008 update to Resolution No. 3434 included the assignment of funds from Proposition 1B, which authorizes the state to issue a $20 billion general obligation bond for a variety of transportation improvements, and the unanticipated additional Congestion Mitigation and Air Quality (“CMAQ”) funds. See 23 U.S.C. § 149. Proposition 1B has a program called “SLPP” which refers to state and local partnerships. If a sponsor has local funds dedicated to the project, the state will do a one to one match with Proposition 1B money. These funds are allocated to the region through a formula that is based on the relative amounts of local self-help revenues that the transit operators have available. The formulas are specified geographically. See RT 1059:8-16. VTA is the project sponsor for the BART Warm Springs to San Jose extension, which means that it promised to deliver the project. See RT 1018:13-15. VTA worked with MTC for years to address the growing congestion on the I-880 corridor, which goes from Oakland to San Jose. Because San Jose is a major employment center and a many workers commute to San Jose from Alameda County via I-880, congestion has increased. Because there is no transit service in that corridor, VTA wanted to fill that gap. VTA demonstrated that commitment by taking a half cent sales tax measure to the voters. That measure, which dedicates funds to the BART system, passed in 2000. See RT 1018:21-1020:2. The BART Warm Springs to San Jose project had $649 million earmarked by the California Legislature to form the Traffic Congestion Relief Program (“TCRP”). The project also estimated over $3 billion in local sales tax money. MTC had no discretion to move these funds to another use. VTA, as Santa Clara’s Congestion Management Agency, also dedicated $49 million in Santa Clara County Regional Transportation Improvement Program (“RTIP”) funds to the project. VTA also targeted $636 million in federal New Starts funds

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1 2 161. 3 4 5 6 162. 7 8 163. 9 10 11 12 13 14 164. 15 16 17 18 165. 19 20 21 22 23 166. 24 25 26 27 28

that it hoped to receive. See RT 1020:2-1022:12; Tr. Ex. 1036 at 8. The BART Warm Springs to San Jose project was included in the 2001 RTP but removed from the 2005 RTP because when the economic crisis hit, and the estimated revenue from sales tax revenue for operations failed to meet the test of sufficiency to operate the extension. See RT 1064:4-1065:11. MTC has committed funds to AC Transit’s Bus Rapid Transit corridors under Resolution No. 3434. See RT 106:12-15. AC Transit received the full amount of Regional Measure 2 (“RM2”) funds that it requested for the Telegraph Bus Rapid Transit service. See Martin DT 91:5-7. RM2 was a ballot measure instituting a $1 bridge toll increase passed by Bay Area voters in March 2004. The expenditure plan funds thirty-seven capital projects, with an emphasis on transit improvements in the bridge corridors, as well as a dozen transit operating projects to enhance service along the bridge corridors. See Joint Glossary at 13. AC Transit’s Bus Rapid Transit project increased by $100 million dollars between 2001 and 2008. MTC fully filled this gap because this project was identified as a top project to target for receipt of Small Starts funding. Between 2001 and 2008, the scope of the MacArthur/Hesperian project was reduced. See RT 1054:4-1055:17. MTC had some unanticipated CMAQ funds that came to the region. MTC made a strategic decision to allocate these funds to a number of programs including Resolution No. 3434. MTC provided $35 million of the funds to cover the shortfall in AC Transit’s Bus Rapid Transit program so that the project could be included in the 2009 RTP. See RT 1049:23-1050:14. The Transbay Transit Center is part of Resolution No. 3434, with a projected cost of $2.6 billion as of 2006. Of that cost, $301 million is projected to come from county sales tax revenue; $25 million is projected from San Francisco RTIP funds, $67 million is projected from a federal earmark that the project sponsor obtained, and $444 million is projected to be obtained from a combination of land sales and planned tax increment from a planned new redevelopment area related to the terminal. MTC cannot transfer any of these funds to

30

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1 2 167. 3 4 168. 5 6 7 8 9 10 169. 11 12 13 14 170. 15 16 171. 17 18 19 172. 20 21 173. 22 23 24 174. 25 26 27 28

another use. See RT 1023:21-1026:12, Tr. Ex. 1036 at 8. The project sponsor of the Transbay Project is the Transbay Joint Powers Board, made up of representatives of AC Transit, Muni, GGT, and SamTrans. See RT 565:25-566:18. The Caltrain Baby Bullet project had $127 million in TCRP funds before it was selected for inclusion in Resolution No. 3434, leaving $1 million to be funded from another source. The second phase of the Baby Bullet project was funded in part by county sales tax measures adopted by the three county Caltrain partners, Santa Clara, San Francisco and San Mateo. The sales tax measures were included in expenditure plans which were adopted outside of MTC's jurisdiction. See RT 1026:13-1027:17, Tr. Ex. 1036 at 8. The Baby Bullet project was included in MTC’s Resolution No. 3434 after Caltrain obtained money from the Traffic Congestion Relief Program initiative committed to the project. See RT 883:25-884:6. Committed Funds versus Discretionary Funds Committed funds are “revenues that are dedicated by law, ballot measure or prior MTC programming actions to specific transportation investments.” See Joint Glossary at 6. MTC operates on a July 1 to June 30 fiscal year. “Fiscal year 2006" means the fiscal year beginning on July 1, 2005 and ending on June 30, 2006. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 115. By statute, MTC can impose conditions on the use of funds from certain funding sources. See RT 227:2-6. MTC prepares an annual report for MTC Discretionary Funding. See, e.g., Tr. Ex. 454. The list of funds included in this report were agreed to in the context of a legal settlement agreement. See RT 821:12-822:2; 360:6-15. MTC prepared a “master scan” of funds considered as part of the 2005 RTP. See RT 360:16-25; Tr. Ex. 455. This “master scan” of funds is a more complete survey of funding sources over which MTC has discretion than the Report of Discretionary Funding. See RT 360:22-25, 361:4-9.
Federal Committed Funds

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1 175. 2 3 4 176. 5 6 7 8 9 10 11 177. 12 13 14 178. 15 16 17 18 19 20 21 22 23 24 25 26 27 28 179.

The Federal Transit Administration (“FTA”) administers formula Sections 5307 and 5309 funds and distributes them based on urbanized areas defined by census data. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 124. Section 5307 funds are granted by the United States Secretary of Transportation to finance mass transit capital projects as well as to finance the planning and improvement costs of equipment, facilities, and associated capital maintenance for use in mass transit (also known as “preventive maintenance”), including the renovation and improvement of historic transportation facilities with related private investment. Section 5307 funds are authorized on a formula basis and programmed by MTC under its Transit Capital Priorities process. See Joint Glossary at 1. There are three categories of Section 5309 funds: Fixed Guideway Modernization; Discretionary Capital - Bus and Bus Facilities; and Discretionary Capital - New Starts. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 140. Section 5309 Fixed Guideway Modernization formula funds may be utilized for both capital renewal, replacement and expansion projects, and for preventive maintenance operating expenses. A “fixed guideway” includes heavy rail, commuter rail, light rail, monorail, trolleybus, aerial tramway, inclined plane, cable car, automated guideway transit, ferryboats, motor bus service on controlled rights-of-way, and HOV lanes. Section 5309 Fixed Guideway Modernization funds are authorized on a formula basis and programmed by MTC under its Transit Capital Priorities process. See Joint Glossary at 1. “Eligible purposes are capital projects to modernize or improve existing fixed guideway systems, including purchase and rehabilitation of rolling stock, track, line equipment, structures, signals and communications, power equipment and substations, passenger stations and terminals, security equipment and systems, maintenance facilities and equipment, operational support equipment including computer hardware and software, system extensions, and preventive maintenance.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 141. Section 5309 Discretionary Capital – Bus and Bus Facilities funds may be utilized for system

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1 2 3 4 5 6 7 8 9 10 11 180. 12 13 14 15 16 17 18 181. 19 20 182. 21 22 23 183. 24 25 26 184. 27 28

expansion, capital renewal and replacement, and bus preventive maintenance operating expenses: “Eligible capital projects include the purchasing of buses for fleet and service expansion, bus maintenance and administrative facilities, transfer facilities, bus malls, transportation centers, intermodal terminals, park-and-ride stations, acquisition of replacement vehicles, bus rebuilds, bus preventive maintenance, passenger amenities such as passenger shelters and bus stop signs, accessory and miscellaneous equipment such as mobile radio units, supervisory vehicles, fare boxes, computers and shop and garage equipment.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 142. Funds are allocated on a discretionary basis. Congress earmarks these funds based on grant applications by the operators. See Joint Glossary at 1. Section 5309 Discretionary Capital - New Starts funds are used for construction of new fixed guideway systems or extensions for light rail, rapid/ heavy rail, commuter rail, monorail, “people movers,” motor bus on exclusive or controlled right of way/HOV lanes, and the like. New Starts programs typically receive funds through a full funding grant agreement (FFGA) that defines the scope and specifies the total multi-year Federal commitment to the project. Congress earmarks these funds based on grant applications by the operators. See Joint Glossary at 2. MTC determines whether a project is statutorily eligible for Section 5307 funds and Section 5309 formula funds. See RT 237:1-238:1; McMillan Dep. of 12-19-07 at 400:8-402:6. MTC is the designated recipient for Section 5307 funds for large urbanized areas in the Bay Area whose populations exceed 200,000. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 125. MTC uses the Transit Capital Priorities (“TCP”) process to allocate Section 5307 funds and some Section 5309 funds. This process is not required by statute. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 126. The goal of MTC’s TCP process is to prioritize the highest-need capital replacement requirements. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 127.

33

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1 185. 2 3 4 5 6 7 8 9 10 11 186. 12 13 14 15 16 17 18 19 20 187. 21 22 23 188. 24 25 26 189. 27 28

In its TCP process, MTC uses a scoring system to determine which statutorily eligible projects will be prioritized for Section 5307 and Section 5309 formula funds. See RT 234:23-235:4. The highest scoring projects generally receive a score of 16, while the lowest scoring projects receive a score of 8. See RT 238:2-6. Occasionally, projects receive a priority score of 17. See RT 238:16-240:4; Tr. Ex. 112 at 54, n. 42. Replacement of revenue vehicles, which are vehicles that carry passengers and generate revenue through fare collection, receives a score of 16. See RT 238:7-15; Tr. Ex. 112. Preventive maintenance receives a score of 9. See RT 241:17-19, 242:1-4; Tr. Ex. 112. Transit expansion receives a score of 8 and is the only category that receives a score lower than preventive maintenance. See RT 241:20-22. Section 5307 funds are allocated based on a formula. For the national amount available, one third of the amount is distributed to the rail operators, or fixed guideway related operators. The other two thirds of the amount go to bus operators. Because there are many more bus operators than rail operators, operators in urbanized areas that have a combination of rail and bus services receive more overall funding at the outset. MTC is the designated recipient of these funds. It does not allocate these funds to the operators in accordance with the national formula. Rather, MTC blends the funds and ranks them according to need. All the transit operators compete for the funds on a basic level based on their capital replacement needs cycle under the TCP scoring system. See RT 1297:20-1299:9. Section 5307 funds are eligible for fund exchange or fund swap as long as the federal funds are used for a statutorily eligible purpose. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 299. By statute, an eligible use of Section 5307 formula funds is preventive maintenance (also known as capitalized maintenance), an operating expense. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 131. In 1999, MTC made an exception to its TCP policy to allow AC Transit to use Section 5307 funds for preventive maintenance purposes pursuant to MTC Resolution No. 3225. This was the first time within the San Francisco/Oakland urbanized area that a preventive maintenance

34

Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page35 of 90

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1 2 3 190. 4 5 6 191. 7 8 9 192. 10 11 12 193. 13 14 15 16 194. 17 18 19 20 195. 21 22 23 196. 24 25 197. 26 27 28

project was funded over a higher-scoring capital project within the same urbanized area. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 132. In 2002, MTC allowed preventive maintenance funds to be used by operators with an operating shortfall for fiscal year 2003-04. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 133. In 2003, MTC allowed preventive maintenance funds to be used by AC Transit, GGT, and VTA to cover their operating shortfalls for fiscal year 2004-05 pursuant to MTC Resolution 3580. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 134. MTC rescinded $7,222,088 in operating assistance from AC Transit in the fiscal year 1999-2000 pursuant to MTC Resolution No. 3186. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 136. MTC used Section 5307 funds, which has been programmed for preventive maintenance, to replace the $7,222,088 in operating assistance it rescinded from AC Transit in the fiscal year 1999-2000. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 137. MTC made an exception to its TCP policy when it used Section 5307 funds to backfill the $7,222,088 in operating assistance that it rescinded from AC Transit in the fiscal year 1999-2000. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 139. A significant portion of the Section 5307 funds that MTC has programmed to AC Transit for preventive maintenance has been used to buy foreign buses that cannot be purchased with federal funds. RT 177:19-178:23. MTC retains the final decision as to modifications of the TCP scoring system and has frequently made modifications or exceptions. See RT 246:9-15. In Resolution No. 3515, MTC approved a temporary “flexible programming” of Section 5307 funds for the 2003-04 year that was established by agreement of all operators in the San Francisco/Oakland, Concord, and Antioch urbanized areas. According to Resolution No. 3515, operators had the discretion to use Section 5307 funds for preventive maintenance or

35

Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page36 of 90

United States District Court For the Northern District of California

1 2 3 4 198. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 199. 19 20 21 200. 22 23 24 201. 25 26 27 202. 28

capital projects with scores of twelve or above under the current Transit Capital Priorities Policies and Procedures. See Tr. Ex. 1041; RT 247:6-25; McMillan Dep. of 12-19-07 at 417:8-418:6. To be eligible for Section 5307 preventive maintenance funds, an operator must show that: (1) an operating shortfall exists; (2) the operator has implemented reasonable cost control and revenue generation strategies; and (3) the shortfall, if not addressed, would result in a significant service reduction. See RT 255:12-256:15; Tr. Ex. 504 at PL023941; Tr. Ex. 112; McMillan Dep. of 12-19-07 at 423:19-25, 424:11-21, 425:9-17, 425:22-426:6, 427:7-10. Even if MTC determines that an operator has met the three requirements, an operator must meet four additional conditions before preventive maintenance will be programmed under Resolution 3688: (1) the operator must show a board-approved bridging strategy that will sustain financial recovery beyond the year for which preventive maintenance is requested; (2) the bridging strategy cannot depend on future preventive maintenance funding from MTC; (3) preventive maintenance cannot be considered as a mechanism to sustain or replenish operating reserves; and (4) an operator may only use Section 5307 funds for preventive maintenance in two of every twelve years. See RT 258:8-260:9; Tr. Ex. 504 at PL023942. Section 5309 funds are eligible for fund exchange or fund swap as long as the federal funds are used for a statutorily eligible purpose. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 300.z Under MTC’s TCP process, Fixed Guideway Modernization Program funds can be used only for rail improvement and ferry improvement. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 146. Section 5309 Fixed Guideway Modernization funds are limited to rail, ferry, and exclusive guideways associated with bus service. The bus element associated with an HOV project could also qualify. See RT 961:13-24. Under MTC’s TCP process, AC Transit is not eligible for Fixed Guideway Modernization Program funds. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291)

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Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page37 of 90

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1 203.
2 3 4 5 6
204. 7 8 9
205. 10 11 12 13 14 15 16 17 18 19
206. 20 21 22
207. 23 24 25
208. 26 27 28
209.

at ¶ 147. Muni and Caltrain each received one-third of all Section 5309 Bus Discretionary funds in FY2003-2007. See RT 544:5-11; Tr. Ex. 771. BART received a little over one-seventh of all Section 5309 Bus Discretionary funds in FY2003-2007. See RT 544:5-11; Tr. Ex. 771. AC Transit received a little under one-twelfth of total Section 5309 Bus Discretionary funds in FY2003-2007. See RT 544:12-13; Tr. Ex. 771. Section 5310 Elderly Individuals and Individuals with Disabilities Program funds may be utilized for operating, capital expansion, and capital renewal and replacement purposes. See Tr. Ex. 112, Ex. C at 10-11. Under current law, Section 5316 Job Access and Reverse Commute (“JARC”) Apportionments funds can be utilized for transit operations, capital expansion, and capital renewal and replacement projects. The JARC grant program was established in 1998 as part of the Transportation Equity Act for the 21st Century ("TEA-21"), Pub. L. NO. 105-178, § 3037, 112 Stat. 107 (1998). “Grants may finance capital projects and operating costs of equipment, facilities, and associated capital maintenance items related to providing access to jobs; promoting use of transit by workers with nontraditional work schedules; promoting use by appropriate agencies of transit vouchers for welfare recipients and eligible low income individuals; and promoting use of employer-provided transportation including the transit pass benefit program.” Tr. Ex. 112, Ex. C at 11-12. After JARC became a formulaized program, AC Transit received approximately $500,000 annually in JARC funds. See RT 128:4-10; see also Martin Dep. of 9-11-07 at 45:17-22; 48:5-10. MTC allocates ten percent ADA Set-Aside funds based on the ADA needs of the transit operator. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 128. MTC uses a different policy to allocate ten percent ADA Set-Aside funds than the policy MTC uses to allocate and program Section 5307 funds. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 129. MTC does not use a scoring system in allocating and programming ten percent ADA

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Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page38 of 90

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1 2
210. 3 4
211. 5 6 7 8 9 10 11 12
212. 13 14 15 16 17 18 19 20 21 22 23 24 25 26
213. 27 28

Set-Aside funds. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 130. Ten percent ADA set-aside funds are eligible for operating expenses. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 158. In FY 2006-2007 and 2007-2008, there was an unexpected excess of $210 million in Section 5307 formula funds from the Federal Transit Administration (“FTA”) that were available for the region. See RT 263:6-264:12. FTA is the United States Department of Transportation agency that provides financial and planning assistance to help plan, build and operate rail, bus and paratransit systems. The agency also assists in the development of local and regional traffic reduction programs. See Joint Glossary at 8. MTC made the decision on how to program these funds for Fiscal Year 2006-2007 and Fiscal Year 2007-2008. See RT 264:13-265:10; McMillan Dep. of 12-19-07 at 435:13-436:16. AC Transit is eligible for Transportation Enhancement Activities (“TEA”) funds to the extent that AC Transit has an eligible project that falls within the statutory definition of “transit enhancement activities.” See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 157. TEA funds are a federal transportation funding category consisting of ten percent of Surface Transportation Program moneys that are set aside for projects that enhance the compatibility of transportation facilities with their surroundings. The primary purpose of STP is construction, reconstruction, rehabilitation, resurfacing, restoration and operational improvements for highways and bridges including construction or reconstruction necessary to accommodate other transportation modes. Other eligible transit activities are capital costs of transit projects. Examples of TEA projects include bicycle and pedestrian paths, restoration of rail depots or other historic transportation facilities, acquisition of scenic or open space lands next to travel corridors, and murals or other public art projects. See Joint Glossary at 17.
State Committed Funds State law requires that, by March 1 of every year, MTC publish an estimate of available transportation revenues (“Fund Estimate”) that it allocates on a yearly basis and the expected distribution of those funds among eligible claimants. This Fund Estimate includes an

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Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page39 of 90

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1 2 3 4 5 6 7 8
214. 9 10
215. 11 12 13
216. 14 15 16
217. 17 18 19 20 21
218. 22 23 24 25 26 27
219. 28

estimate of expected revenue generations for the coming year, and a reconciliation of carryover funds from the prior fiscal year as well as an adjustment to the remaining revenue levels for this year. Fund sources included in the estimate are Transportation Development Act (“TDA”), State Transit Assistance (”STA”), AB 1107 (Cal. Pub. Util. Code § 29142.2) and transit-related bridge toll funds. Transit operators and other claimants may request an allocation of these funds in the upcoming fiscal year up to the amount apportioned to them in the Fund Estimate; however, disbursement will be subject to actual cash availability. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 116. Operators use the Fund Estimate to craft annual budgets. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 119. MTC provides the financial information in the Fund Estimate to all operators to assist them in developing budgets in a timely manner. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 120. MTC’s Fund Estimate is a first step in the distribution of TDA, STA and AB 1107 funds that an operator is eligible to receive in the next fiscal year. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 121. Using financial projections of the aggregate funds expected to be available for the upcoming fiscal year, MTC’s Fund Estimate apportions the funds to eligible claimants based on statutory eligibility. MTC’s policies and existing agreements apply to this funding. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 123.
Transportation Development Act The Transportation Development Act (“TDA”) is a state law enacted in 1971, which imposes a tax of one-quarter of one percent on all retail sales in each county, that is used for transit, special transit for disabled persons, and bicycle and pedestrian purposes. TDA funds are collected by the state and allocated by MTC to fund transit operations and programs. In nonurban areas, TDA funds may be used for streets and roads under certain conditions. See Joint Glossary at 17. TDA funds are generally divided into three separate types: (1) Articles 4 and 8; (2) Article 4.5; and (3) Article 3. See Joint Proposed Findings of Fact and Conclusions of Law (docket

39

Case3:05-cv-01597-EDL Document392 Filed03/27/09 Page40 of 90

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1 220.
2
3
4 221.
5
6 222.
7 223.
8
9
10
11
12
13 224.
14
15
16
17 225.
18
19
20
21
22
23 226.
24
25 227.
26
27
28 228.

# 291) at ¶ 159. TDA Articles 4 and 8 funds may be utilized for transit operations and for transit capital replacement. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 160. TDA Article 4.5 funds may be utilized for paratransit operations. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 161. TDA Article 3 funds may be used for bikes and pedestrian facilities. See RT 298:11-12. TDA funds, by statute, must go back to the county in which the sales taxes were generated. See Tr. Ex. 112, Ex. C at 15-16. If there are multiple eligible transit operators in a county, MTC develops a fund estimate and apportions the TDA funds among the entities that are eligible to request the funds. See RT 296:22-297:1; McMillan Dep. of 11-21-07 at 42:18-43:9. MTC has discretion over how to allocate these funds to eligible claimants within a county. See RT 297:7-9. The Bay Area region receives approximately $260-270 million in TDA funds annually. See RT 297:10-13. The annual MTC Fund Estimate is the cornerstone of MTC's allocation of TDA funds. See RT 299:11-18. MTC makes the ultimate decision as to how to allocate TDA funds and need not follow recommendations by transit operators. See RT 302:7-17. MTC made a policy decision that BART may not receive TDA funds for which it is eligible in San Francisco and Alameda counties. Instead, those TDA funds are claimed by Muni in San Francisco, and AC Transit in Alameda. See RT 303:18-304:4, 1278:17-1281:14. AC Transit receives approximately $56 million annually in TDA funds. See RT 305:17-306:8; Tr. Ex. 654, Attachment A at 2, 14.
State Transit Assistance State Transit Assistance (“STA”) provides funding for mass transit operations and capital costs. See Joint Glossary at 15-16. STA funds are composed of: (1) revenue-based funds; and (2) population-based funds. These two types of STA funds are allocated differently. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 162. STA revenue-based funds may be utilized for transit operations. See Joint Proposed Findings

40

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1 229.
2
3 230.
4
5
6 231.
7
8
9
10 232.
11
12
13 233.
14
15
16 234.
17
18 235.
19
20
21
22
23
24
25 236.
26
27
28

of Fact and Conclusions of Law (docket # 291) at ¶ 163. STA population-based funds may be utilized for transit operations and capital. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 164. MTC distributes STA funds based on statutory eligibility and the allocation policies in MTC Resolution No. 2310. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 165. By statute, 50% of STA funds are distributed to transit operators based on the transit operators' revenue-generating capacity, while the other 50% is distributed to Regional Transportation Planning Agencies based on population. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 166. Pursuant to MTC policy, AC Transit is eligible for STA funds allocated to paratransit purposes. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 167. MTC allocated $11,597,580 in STA funds to AC Transit during the fiscal year 2001-02 for operating purposes pursuant to MTC Resolution No. 3371. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 168. In FY 2005-2006, MTC received additional funds from Proposition 42, which increased the base STA funds available in the region. See RT 318:4-7. MTC Resolution 3837 is MTC’s new policy for allocating STA population-based funds. See RT 321:2-4; Tr. Ex. 1744. Resolution 3837 was approved by MTC in January 2008 and superseded Resolution 2310. See RT 310:17-25. Resolution 3837 still allocates STA population-based funds to the same four categories found in Resolution 2310: northern counties, small operators, paratransit, and regional coordination programs. See RT 321:5-25; Tr. Ex. 1744 at Attachment A.
Proposition 1B Proposition 1B (the Highway Safety, Traffic Reduction, Air Quality, and Port Security Bond Act of 2006) passed with 61 percent of the vote in November 2006. Proposition 1B, also known as the Infrastructure Bond, authorized the state to issue a $20 billion general obligation bond for a variety of transportation improvements. See Joint Proposed Findings

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1 237.
2
3
4
5
6
7
8
9 238.
10
11
12
13
14
15
16
17 239.
18
19 240.
20
21 241.
22
23 242.
24
25 243.
26
27
28 244.

of Fact and Conclusions of Law (docket # 291) at ¶ 169; Joint Glossary at 12. Proposition 1B included funding “to the Department of Transportation for intercity rail projects and to commuter or urban rail operators, bus operators, waterborne transit operators, and other transit operators in California for rehabilitation, safety or modernization improvements, capital service enhancements or expansion, new capital projects, bus rapid transit improvements, or for rolling stock procurement, rehabilitation, or replacement.” See Cal. Gov’t Code § 8879.23(f)(1); see also Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 170.
AB 664 AB 664 is the Net Bridge Toll Revenues Program, originally passed by the California Legislature in 1975, is codified at Streets and Highways Code § 30880 et seq. AB 664 imposed a toll increase on the SF-Oakland (Bay) Bridge, the San Mateo Bridge and the Dumbarton Bridge. The Legislature intended “that toll bridge revenues be used to further the development of public transportation systems in the vicinity of toll bridges in order to alleviate automobile-related congestion and pollution and to diminish the need for state expenditures on new bridge facilities.” Cal. Sts. & Hwy. Code § 30880; see also Joint Glossary at 2. MTC Resolution 3215 is MTC’s policy with respect to bridge toll funds including AB 664. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 171. Approximately $12 million to $15 million in AB 664 funds come into MTC’s Bay Area region on an annual basis. See RT 325:4-6. By statute, AB 664 funds must be used for transit purposes within bridge corridors. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 172. By statute, MTC can allocate AB 664 funds for capital purposes. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 173. MTC’s policy is to make AB 664 funds available as matching funds for federal formula funds Section 5307, Section 5309, STP, CMAQ and STIP. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 175. MTC has made exceptions to its general policy of using AB 664 funds as local match funds

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1
2 245.
3
4
5
6 246.
7
8
9 247.
10
11
12
13
14 248.
15
16
17
18
19 249.
20
21
22 250.
23
24 251.
25
26
27 252.
28

for federal formula funds. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 176. MTC made an exception to its general policy of allocating AB 664 funds in 2003, 2004 and 2005 by allocating AB 664 funds to eligible transit operators to implement the BART feeder bus program. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 177. MTC has used AB 664 funds as a local match for preventive maintenance funds. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 179.
Regional Measure 1 Regional Measure 1 (“RM 1”), passed by Bay Area voters in 1988 and codified at Streets and Highways Code § 30910 et seq., increased tolls on the region’s seven state-owned bridges to a uniform $1 at the time. Revenues generated by the toll increase were dedicated by RM 1 to fund certain highway and bridge improvements, public transit rail extensions, and other projects that reduce congestion in the bridge corridors. See Joint Glossary at 13. RM 1 is divided into two primary pots of money: 5% Reserves, and 90% Rail Extension Reserves. The 90% Rail Extension Reserves component is derived from the toll increase on the Bay Bridge. Cal. Sts. & Hwys. Code § 30912(b). Streets & Highways Code § 30919 requires RM 1 90% rail extension reserves to be used exclusively for rail transit capital extension and improvements. See Joint Glossary at 13. By statute, the 60% share of funds over which MTC has discretion are to be used for reducing congestion and improving travel options on bridge corridors. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 273. MTC’s allocation policy for Regional Measure 1 5% funds is set forth in Resolution 2004. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 180. It is MTC’s policy to allocate a majority of 5% Reserves Regional Measure 1 Funds to the ferry program. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 180. The 5% RM1 funds go to ferries and to the Bay Trail under MTC policy because those entities do not receive most of the funds available to other operators. See RT 930:8-25.

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253. 1
2
3 254.
4
5 255.
6
7 256.
8
9 257.
10
11
12 258.
13
14
15 259.
16
17
18
19
20 260.
21
22 261.
23
24
25
26
27
28 262.

Forty percent of the 5% funds are required by statute to be used for ferry capital and operating expenses. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 272. AC Transit applied for 5% Reserves Regional Measure 1 Funds for fiscal year 1998-99. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 182. AC Transit is statutorily eligible to receive a portion of Regional Measure 1 5% funds. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 274. MTC has never allocated any of the 5% Reserves Regional Measure 1 funds to AC Transit. See RT 358:3-21. MTC allocates 90% Rail Extension Reserves Regional Measure 1 Funds pursuant to MTC Resolution 2004. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 181. AC Transit is not statutorily eligible for Regional Measure 1 90% rail extension reserves. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 270.
Regional Measure 2 Regional Measure 2 (“RM 2”) was a ballot measure instituting a $1 bridge toll increase passed by Bay Area voters in March 2004. The expenditure plan for the measure funds thirty-seven capital projects, with an emphasis on transit improvements in the bridge corridors, as well as a dozen transit operating projects to enhance service along the bridge corridors. See Joint Glossary at 13. Specific projects are earmarked for funding in the legislation implementing RM 2. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 184. RM 2 provided for a specific line item expenditure plan of projects eligible for this fund source. MTC can only change the projects in the legislation through two limited means. First, if a project is deemed undeliverable after a public hearing, the funds may be shifted to another project in the same bridge corridor. Second, if a project could be fully funded from a different source, then the RM 2 funds may be moved to another project in the same corridor, after a public hearing. See RT 931:15-932:9. MTC allocated RM 2 Funds to operating and planning for fiscal year 2005-06 pursuant to

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1 2
263. 3 4 5 6 7 8 9 10
264. 11 12 13 14 15 16
265. 17 18 19 20 21 22
266. 23 24
267. 25 26 27
268. 28

MTC Resolution No. 3719. See Tr. Ex. 500. RTIP/STIP
The Regional Transportation Improvement Program (“RTIP”), California Government Code § 14527(a), is a listing of highway and transit projects that the region hopes to fund, compiled by MTC every two years from priority lists submitted by local jurisdictions. The California Transportation Commission (“CTC”) must either approve or reject the RTIP list in its entirety. Once the CTC approves an RTIP, it is combined with those from other regions to comprise seventy-five percent of the funds in the State Transportation Improvement Program (“STIP”). The RTIP must include all projects to be funded with regional improvement funds under Streets and Highways Code § 164(a). See Joint Glossary at 14. The State Transportation Improvement Program is the output after CTC combines the various RTIPs in California as well as a list of specific projects proposed by Caltrans. Covering a five-year span and updated every two years, the STIP determines when and if transportation projects will be funded by the state. The STIP is the “Transportation Capital Program” referenced in Section 164 of the Streets and Highways Code. The RTIP is MTC’s submission into the STIP. See Joint Glossary at 16. The RTIP was established by statute in 1997 to restructure the STIP into two parts. Twentyfive percent of the funds made available for transportation capital improvement projects to be programmed in the STIP is assigned to various state level programs focusing on inter-regional connections among the highways and rail. The remaining seventy-five percent is assigned by formula to regional agencies. The funds go to the region based on calculated county shares. See RT 957:2-24; Cal. Streets & Highways Code §§ 163, 164. RTIP funds come from the state and have many limitations because they are allocated by county. See RT 486:19-487:2. Both transit and highway improvements are eligible for RTIP funds. The RTIP funds come out of the State Highway Account, which has huge demands for rehabilitating the state highway system. See RT 958:5-15. MTC’s role in adopting the RTIP is largely ministerial. Projects in the RTIP must be consistent with the RTP. See RT 960:9-21.

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269. 1
2
3 270.
4
5
6
7 271.
8
9 272.
10
11 273.
12
13
14 274.
15
16 275.
17
18
19
20 276.
21
22
23
24 277.
25
26
27
28

RTIP funds that are programmed for transit average less than $50 million a year. See RT 960:22-25.
AB 1107 AB 1107 funds (Cal. Pub. Util. Code § 29142.2) are derived from 1977 legislation to make permanent a temporary one-half cent general sales tax originally imposed to build BART in Alameda, Contra Costa and San Francisco counties. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 189. Under state law, 75% of AB 1107 funds are allocated to BART. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 190. Under state law, MTC may allocate the remaining 25% among AC Transit, BART and Muni. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 191. During the last five years, MTC has allocated half of the 25% share to AC Transit and the other half to Muni, with none to BART. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 192. MTC does not allocate any AB 1107 funds to Caltrain as Caltrain is not eligible for these funds. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 193. MTC changed its allocation basis for allocating AB 1107 funds from a dollar amount to a percentage basis in 2004 pursuant to MTC Resolution 3590. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 194. Uncommitted Funds Federal “Flexible” Highway Programs uncommitted funds are generally divided into three separate types: 1) Surface Transportation Program (“STP”); 2) Congestion Mitigation and Air Quality (“CMAQ”); and 3) Transportation Enhancement Activity (“TEA”) Program. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 150. MTC established a “Fix-it-First” policy under which MTC dedicates a significant amount of money in the RTP to capital rehabilitation of the existing transit system. See RT 372:9-15. MTC intends the policy to strike a balance between sustaining the existing system and expanding it, with an emphasis on the former in terms of the proportion of funding that is allocated to capital rehabilitation versus capital expansion. See RT 406:1-5; 900:21-901:6.

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1 278.
2 3 4 5
279. 6 7 8 9 10 11 12 13 14 15 16 17
280. 18 19 20 21
281. 22 23 24 25 26
282. 27 28

MTC's practice under its “Fix-It-First” policy is that a portion of RTP “Uncommitted” or “Track 1” funds go to maintaining and sustaining the system in terms of meeting capital shortfalls in addition to the approximately eighty percent of the “Committed” funds already going to that purpose. See RT 405:6-14; McMillan Dep. of 11-15-07 at 766:23-769:7. MTC passed Resolution 3331 in January 2001. See Tr. Ex. 509. Resolution 3331 is MTC’s regional policy for fund exchanges for projects programmed with regional discretionary funds. See RT 459:9-12; Tr. Ex. 509 at PL19710. Pursuant to Resolution 3331, sponsors who were receiving federal dollars for certain projects identified as regional priorities could use federal funds allocated to that project on another project that was already approved for the use of federal funds and, in exchange, redirect local dollars to the regional priority project. See RT 458:15-459:12; Tr. Ex. 509 at PL19710, 712. “Local dollars” are funds that the project lead or sponsor has direct responsibility and control over, such as sales tax funds or general funds. See Bockelman Dep. of 11-27-07 at 32:9-19. The “clean” local funds would be directed to the local project that had not yet met the requirements of federal funds. See RT 458:21-460:10; Bockelman Dep. of 11-27-07 at 28:4-18. Resolution 3331 is currently in effect. See RT 462:21-23; Bockelman Dep. of 11-27-07 at 50:11-14. It is MTC policy under MTC Resolution 3331 that the project funded with “clean” local funds must be consistent with MTC’s programming policy in programming the regional discretionary fund. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 278. It is MTC policy under MTC Resolution 3331 that the projects for which the “clean” local funds are used should be completed in the same time frame as they would have been had federal funds had been used. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 279.
STP/CMAQ Congestion Mitigation and Air Quality (“CMAQ”) Improvement Program funds consist of a sum of federal money for projects and activities that reduce congestion and improve air quality, both in regions not yet attaining federal air quality standards and those engaged in

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1 283.
2 3 4 5
284. 6 7
285. 8 9 10 11
286. 12 13 14 15
287. 16 17 18 19 20 21
288. 22 23 24 25 26 27
289. 28

efforts to preserve their attainment status. See Joint Glossary at 6. The purpose of the CMAQ program is to “fund transportation projects or programs that will contribute to the attainment or maintenance of the national ambient air quality standards (NAAQS) for ozone, carbon monoxide (CO), and particulate matter (PM).” See Joint Glossary at 6. CMAQ funds are generally limited to capital expenses, but may also be used to help fund operating costs for the first three years of new operations. See Joint Glossary at 6. Surface Transportation Program (“STP”), 23 U.S.C. §133, funds are one of the key federal funding programs. STP moneys are “flexible” in the sense that they can be spent on mass transit and pedestrian and bicycle facilities as well as on roads and highways. See Joint Glossary at 16. The primary purpose of STP is construction, reconstruction, rehabilitation, resurfacing, restoration and operational improvements for highways and bridges including construction or reconstruction necessary to accommodate other transportation modes. Other eligible transit activities are capital costs of transit projects. See Joint Glossary at 16. The California Department of Transportation (“Caltrans”) apportions the regional STP to the MPOs. Caltrans must apportion funds in accordance with the formula set forth in 23 U.S.C. § 133(d)(3). Funds apportioned under this subdivision remain available for three federal fiscal years. Caltrans must notify each metropolitan planning organization receiving an apportionment under this section each year of the amount of obligation authority estimated to be available for program purposes. See Joint Glossary at 16. STP and CMAQ are multi-modal funds that come to the region by formula. They are mostly limited to capital except for CMAQ in very limited circumstances. MTC works with the Bay Area Partnership Board to develop a programming process that balances needs of transit, bicycles, transportation land use coordination, local streets and road rehabilitation, and strategic expansion. All of these programs are eligible for these funds. See RT 952:11-953:19. STP and CMAQ funds are about the same in amount, although CMAQ is a little lower. CMAQ funds are allocated to the region based on its non-attainment status in meeting

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1 2
290. 3 4
291. 5 6 7 8 9
292. 10 11 12 13 14
293. 15 16 17 18 19 20 21 22 23 24 25
294. 26 27 28

federal air quality thresholds. Because the Bay Area is relatively clean, it is not eligible for as many funds as other regions. See RT 953:25-954:18. The type of project determines whether it is eligible for STP funds or CMAQ funds. Eligibility is determined by legislation. See Martin DT 38:6-23; 39:7-13. STP and CMAQ funds are considered by MTC to be “regional discretionary funds” because MTC makes the programming decision about where and how to spend those funds. See RT 277:25-278:6; RT 460:17-22. By federal statute, highway funds under both STP and CMAQ are eligible to be “transferred” to transit projects. See 23 U.S.C. § 104(k); RT 276:19-277:5. MTC regularly converts a portion of STP funds from highway to transit. See RT 669:7-12. MTC programs STP and CMAQ funds together. See RT 278:20-22. MTC programs approximately $65 million in STP funds to transit annually. See RT 277:6-10. MTC programs approximately $60 million in CMAQ funds to transit annually. See RT 277:11-13. In programming STP and CMAQ funds, MTC considers whether those capital projects are funded through the TCP process. See McMillan Dep. of 12-19-07 at 397:14-24. MTC programmed over $50 million in STP and CMAQ funds to regional projects for which MTC was the sponsor in the Transportation Equity Act for the 21st Century (“TEA-21”) authorization period. See RT 281:16-282:11. TEA-21, successor to SAFETEA and passed by Congress in 1998, retained and expanded many of the programs created in 1991 under ISTEA. TEA-21 reauthorized federal surface transportation programs for six years (1998-2003), and significantly increased overall funding for transportation. See Joint Glossary at 17-18. MTC programmed over $44 million to projects for which MTC was the program sponsor in FY 2007-2008 and FY 2008-2009. See RT 282:12-283:22; Tr. Ex. 1694 at MTCP260327. MTC programmed approximately $12 million to AC Transit during that same two-year time period (during FY 2007-2008 and FY 2008-09). See RT 284:10-12; Tr. Ex. 1694 at MTCP260329. In FY2004-2005, MTC had an unexpected windfall of STP and CMAQ funds of $107 million. See RT 284:13-16. MTC programmed that windfall in MTC Resolution 3695. See RT 285:4-5; Tr. Ex. 1038. The windfall funds were required to be used within one year. See RT 285:14-22. MTC programmed these funds under its TCP process. See RT 288:14-22.

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295. 1 2 3 4
296. 5 6 7 8 9 10 11 12 13 14
297. 15 16 17
298. 18 19 20 21
299. 22 23 24 25 26
300. 27 28

In FY 2008-2009, MTC anticipated an additional $72 million in CMAQ funds. See RT 288:23-25; Tr. Ex. 1742 at MTCP270203. MTC used this money to fund regional initiatives addressing such issues as smart growth, congestion pricing, and transit expansion. See RT 289:14-22; Tr. Ex. 1742 at MTCP270203. STP may be used for almost any capital need, including rehabilitation or expansion, for any mode of surface transportation. See RT 276:11-18; Tr. Ex. 112 Ex. C at 13-14. STP funds may be utilized for “[c]apital costs of transit projects that are eligible under Chapter 53 of 49 U.S.C., including vehicles and facilities, publicly or privately owned, that are used to provide intercity bus service; carpool projects and fringe & corridor parking facilities; transit safety infrastructure improvements and programs; transit research, development and technology transfer; surface transportation planning programs; public transportation management systems under 23 U.S.C. § 303.” Tr. Ex. 112 Ex. C at 13-14 (quoting FTA, “FHWA and FTA Funds That May Be Used for Either Highway or Transit Purposes” http//:www.fhwa.dot.gov/hep/flexfdtble.htm). STP funds that come to the region total about $60 million per year. MTC allocates approximately 50% to non-transit and the other 50% to transit. See RT 563:20-565:10; Tr. Ex. 1694, 1094-1097. 1887. MTC does not dedicate all of the region’s STP funds to transit because there are a lot more needs to be met with these funds than just transit, including local streets and road rehabilitation, Transportation for Livable Communities Program and bicycle needs. See RT 954:20-955:13. Resolution 3618 sets forth MTC’s Transportation for Livable Communities Program guidelines. The TLC Program is to support community-based transportation projects that bring new vibrancy to downtown areas, commercial cores, neighborhoods, and transit corridors, enhancing their amenities and ambience and making them places where people want to live, work and visit. See Tr. Ex. 1653. STP funds are also eligible to be used for preventive maintenance. See RT 279:17-280:2. It is not MTC’s general policy or practice to program STP funds for preventive maintenance. See RT 279:17-25.

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301. 1 2 3 4 5 6 7 8 9 10 11
302. 12 13 14
303. 15 16 17 18 19 20 21
304. 22 23
305. 24 25
306. 26 27 28

Resolution 3738 sets out the agreement between BART and MTC to allocate STP funds to BART in exchange for “clean” (i.e. unrestricted) local funds to be used for BART’s future car replacement needs. See Tr. Ex. 521. The 2005 RTP projected a $1.3 billion transit capital shortfall for BART's capital replacement needs. The BART car replacement accounted for a significant portion of this projected shortfall. MTC therefore approved a resolution to direct STP funds to the BART car replacement project. See RT 280:3-22. Resolution 3738 provides that BART will be programmed STP funds for preventive maintenance for at least a four-year period, while at the same time, BART will provide an equal amount of local funds in an account to fund the BART car replacement project. See Tr. Ex. 521; Bockelman Dep. of Dec. 5, 2007, at 113:7-114:5, 114:9-116:11, 120:16-121:3; Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 285. Resolution 3738 is a departure from MTC's general policies and practices with respect to STP funds. See Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 294. In 1994, pursuant to the STP Reimbursement Exchange Program (Resolution 3018), Santa Clara County Traffic Authority was provided $19.32 million in STP funds in exchange for SSCTA repaying the same amount of “clean” local dollars to MTC. See RT 464:1-6; Tr. Ex. 515. MTC restricted the use of the “clean” local funds to projects that could have received STP funds, but would have had difficulty completing the administrative steps required to receive federal funds. See Bockelman Dep. of 11-27-07 at 71:24-74:1; see also RT 464:20-465:5. MTC had full discretion to determine how the “clean” local funds would be used. Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 283. Clean local funds can be used for any transit purpose within statutory requirements. Second Supplemental Joint Proposed Findings of Fact (docket # 353) at ¶ 284. MTC made exceptions to its own policy and did not require all projects funded with STP Reimbursement Exchange Program funds to be eligible for STP funds. See RT 464:20465:5. On at least one occasion, MTC used “clean” local funds provided to it pursuant to the STP Reimbursement Exchange Program for the Golden Gate Bridge Physical Suicide

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1 2
307. 3 4 5
308. 6 7 8 9 10 11 12 13 14
309. 15 16 17 18 19
310. 20 21 22 23 24
311. 25 26 27 28

Deterrence System, which was not eligible for STP funds. Id.; Bockelman Dep. of 11/27/07 at 79:17-80:10. MTC also programmed to itself $1.2 million in “clean” local funds pursuant to the STP Reimbursement Exchange Program for a TransLink project. See RT 465:6-20; Bockelman Dep. of 11-27-07 at 82:3-83:2. Congestion Mitigation and Air Quality funds may be utilized for “[a]ny transit capital projects and operating expenses for new services. Funds may only be used in non-attainment and maintenance areas and projects must demonstrate an air quality benefit. States without non-attainment or maintenance areas may use their minimum apportionment of CMAQ for any project in the State eligible under either CMAQ or STP. Operating assistance is limited to new or expanded transportation services. Operating assistance is limited to three (3) years.” Thus, CMAQ funds are generally limited to capital expenses, but may also be used to help fund operating costs for the first three years of new operations. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 154. CMAQ funds transferred from highway to transit may be used for, among other purposes, new transit vehicles “to expand the fleet or replace existing vehicles,” for “operating assistance to introduce new transit service or expand existing transit service for a maximum of three years,” and for transit fare subsidies under specified conditions. See Tr. Ex. 501, Sections b., d. and e. at PL024143-44; Tr. Ex. 112 Ex. C at 13-14. According to the guidance on eligibility of CMAQ funds, capital rehabilitation is not an eligible use. See RT 955:16-956:15, Tr. Ex. 1924 at 11. However, CMAQ funds are eligible for several projects that constitute capital rehabilitation, such as replacement of older vehicles with vehicles that utilize new clean air technologies, and diesel engine retrofits. See RT 1269:15-1271:5; Tr. Ex. 1924 at 17; Tr. Ex. 112 Ex. C at 13-14. Resolution 3731 establishes an agreement between MTC and Sonoma County Transportation Authority to exchange $2.5 million in CMAQ funds with the same amount of Sonoma County “clean” local measure funds. See Tr. Ex. 523; Bockelman Dep. of 11-27-07 at 96:5-97:22. The “clean” local funds provided by Sonoma County would be used by MTC to continue the STP exchange program embodied in Resolution 3018. See Bockelman Dep. 12-

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5-07 at 134:17-135:5. 1

312. MTC has the ability to structure exchanges similar to the STP Reimbursement Exchange 2

Program with other operators. See Tr. Ex. 112. 3

TEA 4

313. The Transportation Enhancement Activity (“TEA”) Program is a federal transportation 5

funding category, as described in more detail above in paragraph 214. 6

314. The Intermodal Surface Transportation Efficiency Act (“ISTEA”) is federal legislation 7

enacted in 1991 that initiated broad changes in the way transportation decisions are made. 8

ISTEA emphasized diversity and balance of modes, as well as the preservation of existing 9

systems before construction of new facilities. ISTEA expired in 1997, but much of its 10

program structure was carried forward in successor federal legislation such as the 11

Transportation Equity Act for the 21st Century (“TEA-21”) and the Safe, Accountable, 12

Flexible, Efficient Transportation Equity Act (“SAFETEA”). See Joint Glossary at 9. 13

315. As set forth above in paragraph 295, TEA-21 succeeded ISTEA in 1998. 14

316. SAFETEA is a multi-year federal transportation bill, signed into law by President George 15

Wilderness Act. Bush on August 10, 2005. The bill authorizes $255.5 billion in funding for 16

federal surface transportation programs over five years. SAFETEA maintains the program 17

structure of its predecessor, TEA 21, but provides a much higher number of earmarks for 18

special projects chosen by Congress. SAFETEA is distinguished by its emphasis on safety, 19

including a federal Safe Routes to School Program, and new flexibility for states to develop 20

high occupancy/toll (“HOT”) lanes. See Joint Glossary at 14. 21

CONCLUSIONS OF LAW 22

Standing 23

The “irreducible minimum” of standing consists of three elements: 24

First, the plaintiff must have suffered an “injury in fact” -- an invasion of a legally

25

protected interest which is (a) concrete and particularized, [citations omitted] and (b)

‘actual or imminent,’ not ‘conjectural’ or ‘hypothetical,’ [citations omitted]. Second,

26

there must be a causal connection between the injury and the conduct complained of -

- the injury has to be ‘fairly . . . traceable to the challenged action of the defendant,

27

and not . . . the result of the independent action of some third party not before the

court.’ [citations omitted]. Third, it must be ‘likely,’ as opposed to merely

28

‘speculative,’ that the injury will be ‘redressed by a favorable decision.’

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Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). A plaintiff must have suffered or be 1
threatened with an injury that is “concrete and particularized” and “actual or imminent” in order to 2
have standing, coupled with a sufficient likelihood that he will again be wronged in a similar way. 3
Bates, F.3d at 985-86 (quoting Lujan, 504 U.S. at 560; City of Los Angeles v. Lyons, 461 U.S. 95, 4
111 (1983). See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 1 5
(Conclusion of Law). 6
Plaintiffs may satisfy the first element with only one type of injury. See Lujan, 504 U.S. at 7
560. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 2 (Conclusion 8
of Law). Actual quality of life injuries satisfy the injury in fact prong requirement. See Duke Power 9
Co. v. Carolina Env. Study Group, 438 U.S. 59, 73-74, n.18 (1978); Lujan, 504 U.S. at 560; see also 10
Aug. 21, 2008 Order on Summ. Adjudication/Judgment at 8; Joint Proposed Findings of Fact and 11
Conclusions of Law (docket # 291) at ¶ 3 (Conclusion of Law). Concrete economic injury is also 12
sufficient to establish injury in fact for standing purposes. See Sierra Club v. Morton, 405 U.S. 727, 13
737 (1972); Lujan, 504 U.S. at 560; see also Sept. 19, 2005 Order on Motion to Dismiss at 6; Jan. 14
20, 2006 Order on Motion to Dismiss at 8; Aug. 21, 2008 Order on Summ. Adjudication/Judgment 15
at 9; Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 4 (Conclusion of 16
Law). 17
With respect to quality of life or economic harm, Plaintiffs must show “that a favorable 18
decision is likely to redress [their] injur[ies], not that a favorable decision will inevitably redress 19
[their] injur[ies],” in order to demonstrate redressability for the purposes of standing. Graham v. 20
Fed. Emerg. Mgmt. Agency, 149 F.3d 997, 1003 (9th Cir. 1998); see also Aug. 21, 2008 Order on 21
Summ. Adjudication/Judgment at 12; Joint Proposed Findings of Fact and Conclusions of Law 22
(docket # 291) at ¶ 6 (Conclusion of Law). The Court previously held that “Plaintiffs’ own 23
experiences sufficiently demonstrate their quality of life injury.” See Aug. 21, 2008 Order on 24
Summ. Adjudication/Judgment at 9:23-24. The Court also previously held that “Plaintiffs have met 25
their burden of demonstrating economic injury for purposes of summary judgment.” See Aug. 21, 26
2008 Order on Summ. Adjudication/Judgment at 10:14-15. 27
The causation element of the standing analysis is satisfied if the alleged injury is fairly 28
traceable to the purportedly illegal conduct. See Lujan, 504 U.S. at 560-61 (quoting Simon, 426
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U.S. at 41-42). The Lujan Court stated: 1

When, however, as in this case, a plaintiff's asserted injury arises from the

2

government's allegedly unlawful regulation (or lack of regulation) of

someone else, much more is needed. In that circumstance, causation and

3

redressability ordinarily hinge on the response of the regulated (or

regulable) third party to the government action or inaction -- and perhaps

4

on the response of others as well. The existence of one or more of the

essential elements of standing ‘depends on the unfettered choices made by

5

independent actors not before the courts and whose exercise of broad and

legitimate discretion the courts cannot presume either to control or to

6

predict,’ [citation omitted]; and it becomes the burden of the plaintiff to

adduce facts showing that those choices have been or will be made in such

7

a manner as to produce causation and permit redressability of injury.

[citation omitted]. Thus, when the plaintiff is not himself the object of the

8

government action or inaction he challenges, standing is not precluded,

but it is ordinarily ‘substantially more difficult’ to establish. [citation

9

omitted]

10 Lujan, 504 U.S. at 562 (emphasis added).
11 A defendant’s actions must have a determinative or coercive effect on the third party’s
12 decisions to the third party’s disadvantage. See Bennett v. Spear, 520 U.S. 154, 168 (2000); Aug.
13 21, 2008 Order at 11; Def.’s Proposed Separate Findings of Fact and Conclusions of Law ¶ 3. At a
14 minimum, a defendant’s actions must constitute a “substantial factor motivating” the conduct of the
15 third party. See First Order on Motion to Dismiss at 8 (citing Bennett v. Spear, 520 U.S. 154, 168
16 (2000); Tozzi v. U.S. Dep't of Health & Human Servs., 271 F.3d 301 (D.C. Cir. 2002)) (internal
17 citations and quotations omitted); see also Aug. 21, 2008 Order on Summ. Adjudication/Judgment at
18 11 (quoting Tozzi, 271 F.3d at 308); Joint Proposed Findings of Fact and Conclusions of Law
19 (docket # 291) at ¶ 5 (Conclusion of Law). The record must present “substantial evidence of a
20 causal relationship between the government policy and the third-party conduct, leaving little doubt
21 as to causation and the likelihood of redress.” National Wrestling Coaches v. Dep’t of Education,
22 366 F.3d 930, 941 (D.C. Cir. 2004); see also Graham, 149 F.3d at 1003 (a plaintiff also lacks
23 standing when redressability “depends on the unfettered choices made by independent actors not
24 before the courts and whose exercise of broad and legitimate discretion the courts cannot presume
25 either to control or predict.”) (quoting ASARCO, Inc. v. Kadish, 490 U.S. 605, 615, 109 S.Ct. 2037,
26 104 L.Ed.2d 696 (1989) (plurality opinion)); Tozzi, 271 F.3d 301; Def.’s Proposed Separate
27 Findings of Fact and Conclusions of Law ¶ 3.
28 Here, the question of causation and redressability for the purpose of standing is a close one

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because of the stricter test applied to government actions that are one step removed from the 1
Plaintiffs due to the intervening actions of a third party not before the Court. On the one hand, AC 2
Transit is an independent third party entity with an elected board of directors that controls its budget 3
and determines all questions of policy, including what services to provide. RT 157:16-19; 158:7-15. 4
For example, without any coercion or directive by MTC, AC Transit chooses to run Transbay 5
service, which represents 13% of AC Transit’s Vehicle Revenue Hours (“VRH”) and 20% of 6
Vehicle Revenue Miles (“VRM”). RT 1079:4-1080:1; 1327:9-19. This service aimed at commuters 7
between the East Bay and San Francisco, often from the more affluent and whiter areas served by 8
AC Transit, does not primarily benefit the Plaintiff Class of minority riders. Transbay service costs 9
more than $20 million per year, with the farebox recovery rate of just over 20%, so if AC Transit 10
reduced or eliminated that service, it would save money. See RT 721:22-722:14; 1328:22-1329:11; 11
Spencer DT 20:4-11. Moreover, AC Transit recently agreed to make a capital contribution of a total 12
of $57 million to the Transbay terminal project, which facilitates transbay transit but not transit 13
within the urbanized areas of higher minority concentration on which Plaintiffs focus. RT 209:2314
210:1; 212:25-213:18. 15
Further, the state of the economy at times more directly affects service levels and fares than 16
any funding decisions by MTC. Whereas projected shortfalls are predictions or best estimates that 17
do not always materialize in reality, unanticipated economic downturns adversely affect revenues 18
such as sales receipts. Like the observation by the economist John Kenneth Galbraith that “[t]he 19
only function of economic forecasting is to make astrology look respectable,” forecasting transit 20
funding levels is an imperfect science.2 These fundamental economic forces are beyond the control 21
of either MTC or AC Transit. However, the state of the economy is not an independent third party 22
decision-maker of the kind that led to the more stringent test for standing in Lujan and its progeny. 23
On the other hand, AC Transit must set its service levels within the parameters of its 24
available funding (RT 158:10-15), and when it faces an imminent shortfall, must make cuts and 25
26 2 See Vikas Bajaj, Has the Economy Hit Bottom Yet?, New York Times, Mar. 14, 2009,
27 available at http://www.nytimes.com/2009/03/15/weekinreview/15vikas.html?_r=1&scp=2 &sq=john%20kenneth%20galbraith&st=cse. Also, while recessions tend to reduce transit funding, at
28 least from state and local sources, steep increases in the price of gasoline may at times raise the level of transit use and thus farebox recoveries, even in hard economic times. See RT 606:6-18.
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perhaps also raise fares. AC Transit has been forced to cut urban bus service to the detriment of the 1
Plaintiff Class in the past due to funding shortfalls, and would likely spend some, if not all, of any 2
additional funds on avoiding further cuts and/or expanding those services. While an economic 3
downturn will tend to reduce funding and may lead to reductions in service, a shift of funds from 4
other transportation uses to AC Transit would alleviate the extent of those reductions. The Board of 5
AC Transit is elected and is therefore designed to be responsive to the needs of its constituents, 6
including the Plaintiff Class. While Plaintiffs’ witness, Mr. Peeples, did not testify on behalf of the 7
Board, as a long time Board member and current President, he exemplified a commitment to 8
improving service to the Plaintiff Class. Further, AC Transit’s Board adopted a “Strategic Vision” 9
in 2001 which included many projects which would benefit the Plaintiff Class, and has requested 10
more funding from MTC for such projects than it has received. The “Strategic Vision” remains the 11
current policy of the AC Transit Board. RT 99:3-5. Therefore, on balance, AC Transit is likely to 12
use a significant portion of any additional funds to benefit the Plaintiff Class. 13
An association has standing when: (1) its members would otherwise have standing to sue in 14
their own right; (2) the interest that it seeks to protect are germane to the organization's purpose; and 15
(3) neither the claim asserted nor the relief requested requires the participation of individual 16
members in the suit. Hunt v. Wash. State Apple Adver. Comm'n, 432 U.S. 333, 343 (1977); see also 17
Aug. 21, 2008 Order on Summ. Adjudication/Judgment at 15; Joint Proposed Findings of Fact and 18
Conclusions of Law (docket # 291) at ¶ 7 (Conclusion of Law). The first prong of Hunt is satisfied 19
so long as an organization has at least one member who would have standing to bring the suit. Nat'l 20
Lime Assoc. v. Env. Prot. Agency, 233 F.3d 625, 636 (D.C. Cir. 2000). See Joint Proposed Findings 21
of Fact and Conclusions of Law (docket # 291) at ¶ 8 (Conclusion of Law). The second prong of the 22
Hunt test is “undemanding,” and requires “only that an organization's litigation goals be pertinent to 23
its special expertise and the grounds that bring its membership together.” Humane Society of the 24
U.S. v. Hodel, 840 F.2d 45, 26, 58 (D.C. Cir 1988); see also Aug. 21, 2008 Order on Summ. 25
Adjudication/Judgment at 16; Joint Proposed Findings of Fact and Conclusions of Law (docket # 26
291) at ¶ 9 (Conclusion of Law). The third Hunt prong does not require participation of individual 27
members when the suit does not seek individualized damages. See Presidio Golf Club, 155 F.3d at 28
1159; Aug. 21, 2008 Order on Summ. Adjudication/Judgment at 15; Joint Proposed Findings of Fact
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1 and Conclusions of Law (docket # 291) at ¶ 10 (Conclusion of Law).

2

This case does not require the participation of individual members from either ATU or CBE

3 because Plaintiffs seek prospective and equitable relief, not individualized damages. See Aug. 21,

4 2008 Order on Summ. Adjudication/Judgment at 15; Joint Proposed Findings of Fact and

5 Conclusions of Law (docket # 291) at ¶ 11 (Conclusion of Law). ATU and CBE have established

6 germaneness for purposes of trial based on the record submitted for summary judgment. See Joint

7 Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 264. To the extent that the

8 individual members of the organizational Plaintiffs have standing, the organizational Plaintiffs also

9 have standing. Here, class members Yvonne Williams and Margo Robinson are members of ATU,

10 and class members Concepcion Chavez, Octavio Hernandez and Virginia Martinez are members of

11 CBE.3

12

The Court concludes that Plaintiffs have met their burden of showing standing.

13 Statute of Limitations

14

The statute of limitations for Plaintiffs’ claims under California Government Code Section

15 11135 is two years. See Cal. Civ. Proc. Code § 335.1; Taylor v. Regents of Univ. of Cal., 993 F.2d

16 710, 712 (9th Cir. 1993); Gatto v. County of Sonoma, 98 Cal.App.4th 744, 759-60 (2002). MTC

17 argues that because Plaintiffs’ complaint was filed on April 19, 2005, Plaintiffs’ claims are limited

18 to actions taken by MTC on or after April 19, 2003. Therefore, MTC argues that Plaintiffs’

19 challenges to MTC’s funding policies with respect to Resolution 3434 and committed funds are

20 time-barred because the fund allocation policies were adopted well before April 2003.

21

The question of whether some of Plaintiffs’ claims are time-barred was raised prior to trial in

22 MTC’s Motion in Limine to exclude time-barred evidence. Without ruling on the merits of the

23 statute of limitations issue, the Court denied MTC’s motion, stating: “Defendant’s Motion in Limine

24 to exclude time-barred evidence is denied with respect to pre-2003 evidence on the basis that while

25

26

3 At the summary judgment stage, MTC raised the question of CBE’s standing to participate

in this lawsuit in light of the releases contained in the March 2004 settlement agreement between CBE 27 and MTC. In the August 21, 2008 Order on Summary Judgment, the Court instructed the parties to try

to reach an agreement on the effect of the settlement on CBE’s ability to proceed in this case. The 28 parties did not do so, but in light of the Court’s ruling on Plaintiffs’ disparate impact claim, as described

below, the Court need not reach this issue.

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1 Plaintiffs’ continuing violation theory may not be viable, historical information may be relevant as

2 background.” Sept. 19, 2008 Order Following Pretrial Conference at 2:7-9. This issue was raised

3 again by MTC in counsel’s opening statement at trial. RT 40:7-10. Yet Plaintiffs failed to address

4 this issue in their post-trial brief, nor did they seek leave to file any additional briefing on this issue,

5 which was raised in MTC’s post-trial brief. Thus, it appears that Plaintiffs have abandoned their

6 opposition to MTC’s statute of limitations argument. Nonetheless, the Court will address the issue.

7

To determine the timeliness of Plaintiffs’ claims, the Court must examine the specific

8 practices that are at issue. See National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 110-11

9 (2002). Prior to the Supreme Court’s decision in Morgan, the continuing violation doctrine

10 preserved a plaintiff’s claims for actions taken prior to the statute of limitations period pursuant to

11 an ongoing discriminatory policy or practice, as long as at least one of the actions occurred during

12 the limitations period. See Morgan v. National R.R. Passenger Corp., 232 F.3d 1008, 1015-16 (9th

13 Cir. 2000), aff’d in part and rev’d in part, National R.R. Passenger Corp. v. Morgan, 536 U.S. 101

14 (2002). The Supreme Court in Morgan substantially limited the continuing violation doctrine,

15 precluding its application to discrete acts of employment discrimination, such as termination, failure

16 to promote, denial of transfer or refusal to hire, even if done pursuant to an ongoing policy. At the

17 same time, the Court allowed the application of the doctrine to a claim for hostile work environment,

18 which by its nature consists of multiple related actions that by themselves may not constitute

19 discrimination, but in the aggregate create an ongoing discriminatory workplace environment.

20 Morgan, 536 U.S. at 122. Morgan did not consider whether the continuing violation doctrine

21 applied to the pattern or practice claims, which were not raised in that case. 536 U.S. at 115, n. 9.

22 By the same token, it did not endorse the continued application of that doctrine to such claims. See

23 Lyons v. England, 307 F3d 1092, 1106 (9th Cir. 2002).

24

Although Plaintiffs’ claims are based on disparate impact, Plaintiffs appeared to argue pre-

25 trial that their claims involve a pattern or practice and so are timely under the continuing violation

26 theory. Plaintiffs did not bring this case based on pattern and practice, but on disparate impact. The

27 question of the applicability of the continuing violation doctrine to explicit pattern or practice claims

28

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1 is unsettled, so its extension to disparate impact claims is questionable.4 A disparate treatment case,

2 Morgan and its progeny did not address disparate impact claims. On the one hand, Plaintiffs’ claims

3 are similar to the individual decisions at issue in a disparate treatment case such as Morgan in the

4 sense that Plaintiffs challenge discrete policies and practices that arose at a particular time. Indeed,

5 a successful disparate impact claim must identify a discrete practice. See Stout v. Potter, 276 F.3d

6 1118, 1124 (9th Cir. 2002) (“Plaintiffs generally cannot attack an overall decisionmaking process in

7 the disparate impact context, but must instead identify the particular element or practice within the

8 process that causes an adverse impact.”) (citing Wards Cove Packing Co. v. Atonio, 490 U.S. 642,

9 656-57 (1989)). On the other hand, Plaintiffs’ claims are arguably somewhat like pattern or practice

10 or hostile work environment claims, which involve an empirical showing of wide-ranging and

11 routine discrimination. See Cherosky v. Henderson, 330 F.3d 1243, 1247 (9th Cir. 2003)

12 (concluding that the plaintiffs had not shown a wide-ranging discriminatory policy, and instead had

13 shown only discrete acts: “As the district court aptly noted, the ‘heart of plaintiffs’ complaint does

14 not stem from the policy regarding the use of respirators, but rather from the individualized

15 decisions that resulted from implementation of a policy originating from OSHA.’ These

16 individualized decisions are best characterized as discrete acts, rather than as a pattern or practice of

17 discrimination.”).

18

Plaintiffs here, however, challenge MTC’s specific funding policies as they affect the class

19 of minority AC Transit riders. An allegation by Plaintiffs that harmful discrete acts were taken in

20 furtherance of a discriminatory policy does not extend the limitations period. See Cherosky, 330

21
4 In Lyons, the Ninth Circuit held that when a plaintiff “alleges a systematic violation, each 22 individual act of discrimination occurring within the limitations period may form the basis of an
actionable claim, even if the discriminatory policy was initiated outside the limitations period.” See 23 Lyons, 307 F.3d at 1107, n. 7 (citing Bazemore v. Friday, 478 U.S. 385, 395 (1986) (holding, in a
pattern or practice case that plaintiffs may challenge a discriminatory pay structure that was initiated 24 before Title VII became applicable to public employees because “each week’s paycheck that delivers
less to a black man than to a similarly situated white is a wrong actionable under Title VII.”)). In 25 Ledbetter v. Goodyear Tire & Rubber Co.,127 S. Ct. 2162 (2007), however, the Supreme Court limited
Bazemore and held that a “new Title VII violation does not occur and a new charging period is not 26 triggered when an employer issues paychecks pursuant to a system that is ‘facially nondiscriminatory
and neutrally applied.’” Ledbetter, 127 S. Ct. at 2174. Congress, however, enacted legislation in 27 January 2009 that overturned Ledbetter as undermining long-established principles of American law
and “at odds with robust application of the civil rights law that Congress intended.” See Lilly Ledbetter 28 Fair Pay Act of 2009, Pub.L. No. 111-2, 123 Stat. 5 (2009), amending 42 U.S.C. § 2000e-5[e] at Sec.
2, Findings (1) and (2).

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1 F.3d at 1247; Lyons, 307 F.3d at 1107 (the “assertion that this series of discrete acts flows from a

2 company-wide, or systematic, discriminatory practice will not succeed in establishing the

3 employer’s liability for acts occurring outside the limitations period because the Supreme Court has

4 determined that each incident of discrimination constitutes a separate actionable unlawful

5 employment practice.”). Thus, it appears that Plaintiffs’ challenges to ongoing effects of policies

6 adopted prior to April 19, 2003 are likely time-barred under Morgan. Discrete decisions made up to

7 two years before this lawsuit was filed are actionable. For example, AC Transit applied to have

8 three projects, including a Bus Rapid Transit project in two phases and an enhanced bus projects on

9 eight miscellaneous corridors, included in the 2001 call for projects pursuant to Resolution 3434.

10 RT 116:18-117:4; 425:23-427:6. Prior to the statute of limitations period, MTC included only Phase

11 1 of the Bus Rapid Transit project and enhanced bus on three of the eight corridors on the 2001

12 project list. RT 430:12-16. After this suit was filed, AC Transit’s Resolution 3434 projects were

13 further reduced by elimination of two of the three enhanced bus corridors. RT 431:21-432:2;

14 1350:19-21. The actions causing the reduction in the scope of AC Transit’s projects under

15 Resolution 3434 did not flow automatically from the policy itself and are therefore actionable.

16 Similarly, since as early as 2001, well before the statute of limitations began to run, MTC has made

17 exceptions to its longstanding TCP scoring system to allocate funds to preventive maintenance. RT

18 179:8-181:5; 182:3-7; 183:3-6; 183:25-185:12. Thus, the policies did not dictate use of the funds.

19 In any case, as the Court ruled prior to trial, evidence of prior practices is admissible in disparate

20 impact cases (Paige v. California, 291 F.3d 1141, 1149 (9th Cir. 2002)), so the Court may consider

21 time-barred events as evidence in connection with Plaintiffs’ timely claims.

22 Disparate Impact

23

California Government Code Section 11135 prohibits discrimination in state-funded

24 programs, just as Title VI, 42 U.S.C. § 2000d, et seq., prohibits discrimination in federally-funded

25 programs. Section 11135(a) provides in relevant part:

26

(a) No person in the State of California shall, on the basis of race, national origin, ethnic group identification, religion, age, sex, sexual orientation, color, or disability,

27

be unlawfully denied full and equal access to the benefits of, or be unlawfully subjected to discrimination under, any program or activity that is conducted,

28

operated, or administered by the state or by any state agency, is funded directly by the state, or receives any financial assistance from the state.

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1 See also 22 Cal. Code Regs. § 98101(i)(1) (prohibition against “in carrying out any program or

2 activity directly, or through contractual, licensing or other arrangements, on the basis of ethnic

3 group identification, religion, age, sex, color, or a physical or mental disability: . . . (i) to utilize

4 criteria or methods of administration that: (1) have the purpose or effect of subjecting a person to

5 discrimination on the basis of ethnic group identification, religion, age, sex, color, or a physical or

6 mental disability. . . .”). Unlike Title VI, however, the analogous California statute and its

7 implementing regulations provide a private right of action. See Cal. Gov’t Code § 11139 (“This

8 article and regulations adopted pursuant to this article may be enforced by a civil action for equitable

9 relief.”); see also Blumhorst v. Jewish Family Servs. of Los Angeles, 126 Cal.App.4th 993, 1002

10 (2005) (stating that: “the Legislature did create a private cause of action for civil rights

11 discrimination by the amendments to section 11139. . . .”); Aug. 21, 2008 Order on Summ.

12 Adjudication/Judgment at 19-20.

13

As under Title VI, a prima facie case of disparate impact discrimination under section 11135

14 requires a plaintiff to show: (1) the occurrence of certain outwardly neutral practices; and (2) a

15 significantly adverse or disproportionate impact on minorities produced by the defendant’s facially

16 neutral acts or practices. See Gamble v. City of Escondido, 104 F.3d 300, 306 (9th Cir. 1997)

17 (quoting Pfaff v. U.S. Dep’t of Housing and Urban Development, 88 F.3d 739, 745 (9th. Cir 1996)

18 (construing the Fair Housing Act)); see also Aug. 21, 2008 Order on Summ. Adjudication/Judgment

19 at 21; Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 16 (Conclusion

20 of Law). Demonstration of discriminatory intent is not required under disparate impact theory. See

21 Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971); Gamble, 104 F.3d at 306; see also Joint

22 Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 17 (Conclusion of Law).

23 Causation is established by offering “statistical evidence of a kind and degree sufficient to show that

24 the practice in question has caused the exclusion of . . . [plaintiffs] because of their membership in a

25 protected group.” Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 994-95 (1988) (“Our

26 formulations, which have never been framed in terms of any rigid mathematical formula, have

27 consistently stressed that statistical disparities must be sufficiently substantial that they raise such an

28 inference of causation.”).

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1

Once a prima facie case is established, a defendant must demonstrate a substantial legitimate

2 justification for its actions. See New York Urban League v. State of New York, 71 F.3d 1031 (2d

3 Cir. 1995); Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110 (E.D. Ohio

4 1984); Committee for a Better No. Philadelphia v. Southeastern Pennsylvania Transportation

5 Authority, 1990 U.S. Dist. LEXIS 10895 (E.D. Pa. Aug. 9, 1990). If a defendant carries this burden,

6 a plaintiff must then show an equally effective alternate practice that results in less racial

7 disproportionality. See Georgia State Conference of Branches of NAACP v. Georgia, 775 F.2d

8 1403, 1417 (11th Cir. 1985).

9

Plaintiffs argue that MTC’s funding policies cause a disparate impact on the largely minority

10 riders of AC Transit’s bus system in favor of the lower minority ridership of other Bay Area transit

11 operators, including rail transit operators such as BART and Caltrain. Specifically, Plaintiffs argue

12 that the emphasis on rail expansion that Plaintiffs contend is embodied in MTC’s Regional Transit

13 Expansion Program (Resolution 3434) comes at the expense of improving the bus service used by

14 the more heavily minority bus riders of AC Transit. Plaintiffs also argue that MTC’s policies for

15 allocating both “committed” and “uncommitted” funds among transit operators has resulted in

16 operating shortfall projections for AC Transit leading to cuts in service quality and quantity that

17 disproportionately affect AC Transit’s minority ridership. As discussed below, Plaintiffs have

18 established a prima facie case of disparate impact only with respect to MTC’s practice under

19 Resolution 3434.

20

Prima Facie Case

21

Resolution 3434

22

Resolution 3434 is a strategic long-range plan for transit expansion projects. In 2001, MTC

23 invited proposals for Resolution 3434 projects to be evaluated under Resolution 3357, which

24 provides financial and performance criteria for Resolution 3434 projects. The financial criteria

25 include how much funding the project sponsor has already identified through local, state and/or

26 federal sources. Performance criteria include congestion relief, air quality, connectivity, land use

27 issues, smart growth goals and urban core support. Project sponsors are responsible for all funding

28 and project delivery.

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1

Plaintiffs argue that MTC’s practice of choosing projects for inclusion under Resolution

2 3357 causes a discriminatory adverse impact. Plaintiffs contend that MTC promoted a large

3 expansion of costly rail projects while sacrificing more cost-effective expansion of bus service used

4 by riders who are more heavily minority on a percentage basis. In particular, in 2001, MTC only

5 funded about one-fifth of AC Transit’s requested approximately $1.25 billion, rejecting one of its

6 three proposed projects altogether and part of a second, and further reduced the scope of the second

7 in 2006. RT 119:13-21; 430:12-16; 431:18-432:2; see Findings of Fact, supra, at ¶¶ 148, 150.

8

The evidence showed that MTC applied different criteria to bus projects than to rail projects.

9 RT 1255:8-11. AC Transit was required to show that its proposed bus projects would lure travelers

10 out of their single occupancy vehicles, whereas rail projects did not have to make such a showing

11 expressly. Instead, MTC’s Deputy Executive Director for Policy, Therese McMillan, testified that

12 rail projects were simply assumed to do so. RT 1256:20-1258:3. The evidence also showed that

13 MTC did not apply any rigorous cost effectiveness criteria across the board, which would probably

14 have resulted in some additional bus expansion, which is less capital intensive because it generally

15 shares existing roadways, compared to rail expansion, which requires laying down dedicated train

16 tracks.

17

In 2001, AC Transit submitted three projects, Bus Rapid Transit Phase 1, Bus Rapid Transit

18 Phase 2, and enhanced bus service on eight miscellaneous corridors, for a total capital cost of over

19 $1 billion. RT 119:5-8; 426:2-427:6; Tr Ex. 103 at MTCP000982-990. MTC included the Bus

20 Rapid Transit Phase 1 in full, did not include Phase 2, and included enhanced bus service on only

21 three of the proposed eight miscellaneous corridors, representing in total about one-fifth of the

22 capital money sought by AC Transit. RT 430:12-16; 431:18-20. In 2006, AC Transit’s projects

23 were further limited by elimination of two of the three enhanced bus projects. RT 431:21-432:2.

24

Plaintiffs’ expert in the areas of transit finance, transit funding and long-range transportation

25 planning, Mr. Thomas Rubin, testified regarding the impact of MTC’s selection process. He

26 concluded that approximately 94% of the Resolution 3434 project costs were for rail projects, and

27 less than 5% were for bus projects. RT 517:8-12. He also opined that 84.4% of Resolution 3434

28 funds were dedicated to lower minority operators, and that higher minority operators received only

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1 8%. RT 519:21-520:2. On the other hand, he conceded that it would be valid to attribute the BART

2 to San Jose project to its sponsor, VTA, which like AC Transit is a higher minority operator, rather

3 than to BART as he did in making those calculations. RT 613:2-20. Doing so would considerably

4 reduce the disparity between Resolution 3434 funds allocated to higher minority operators and funds

5 allocated to lower minority operators. Similarly, Mr. Rubin also testified that he attributed a large

6 portion of the cost of the Transbay Terminal to Caltrain (RT 516:1-517:1), even though the project

7 sponsor was the Transbay Joint Powers Authority, of which AC Transit is a member, and Phase I of

8 the Transbay Terminal project was limited to bus only. RT 566:16-18; 1295:14-15. Nonetheless,

9 even if the BART project was attributed to VTA and the Transbay Terminal project was attributed at

10 least in part to AC Transit, MTC’s selection process still causes a disparity in funding for rail

11 projects that on the whole are used by a lower percentage of minority riders, as opposed to bus

12 projects. Further, as capital-intensive rail operators such as BART increase their fleets of rail cars,

13 there will be even more demand on Resolution 3434 funds for rail expansion (RT 412:10-413:1),

14 likely at the expense of bus services. In addition, Mr. Rubin testified that AC Transit’s proposed

15 expansion projects would not only have enabled AC Transit to provide better service at a lower cost,

16 but might have also restored service that had been cut previously. RT 602:7-22; 1386:14-25.

17

On balance, Plaintiffs have shown that MTC’s practice with respect to Resolution 3434

18 caused disparate impact. As described above, MTC allocates more funding to rail projects than to

19 bus projects, resulting in bus projects proposed by AC Transit being excluded from projects listed in

20 Resolution 3434. Although Plaintiffs’ challenge to MTC’s initial decisions on which projects to

21 include under Resolution 3434 appear to be barred by the statute of limitations, those decisions

22 constitute relevant context for MTC’s further reductions in 2006 of the scope of the few AC Transit

23 bus projects that had initially been included.

24

Committed Funds

25

Plaintiffs challenge MTC’s ostensibly neutral practices of: (a) committing to capital use

26 federal formula funds under Section 5307 (urbanized area) and Section 5309 (fixed guideway

27 modernization) that are eligible for transit operations; and (b) committing to expansion STIP/RTIP

28 funds that are eligible for capital rehabilitation. Plaintiffs argue that the overall effect is to shift

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1 funds away from operating the existing transit system into costly expansion projects, including those

2 in Resolution 3434, in effect starving the existing bus system to feed the growth of capital-hungry

3 rail.

4

The allocation of federal formula funds is governed by MTC’s TCP process, which is set

5 forth in Resolution 3688. The scoring system in Resolution 3688 was determined by a consensus of

6 the region’s transit operators, including AC Transit. RT 993:24-995:15. The highest score,

7 generally sixteen, goes to the equipment necessary to provide actual service: vehicles, rolling stock,

8 BART cars, buses, ferry boats and fixed guideway. RT 965:7-10. In the San Francisco/Oakland

9 urbanized area, it is rare that any project with a score of less than sixteen is funded because there are

10 not enough federal funds to do so. RT 240:5-22. Although preventive maintenance, an operating

11 expense, is eligible for Section 5307 funds (RT 233:25-234:5), it only receives a score of nine (RT

12 241:17-19). Other needs that receive a lower score include maintenance facilities, service vehicles

13 and tools. RT 965:17-23. To prevent any one operator from monopolizing the funds, MTC placed a

14 cap on the total amount of Section 5307 funds that any one operator can receive in any one year. RT

15 240:23-241:1.

16

Despite preventive maintenance’s low score, MTC has allowed some committed funds to be

17 used for preventive maintenance in limited circumstances. RT 965:23-966:4. Although there is

18 evidence that MTC has made ad hoc exceptions to provide AC Transit with preventive maintenance

19 funds when it specifically requested them in every year since at least 2001 (RT 179:8-181:1; 181:2-

20 5; 182:3-7; 183:3-6; 183:25-184:17; 184:18-185:12; Exhs. 504, 505, 1040, 1041), many of these

21 exceptions were actually funding swaps to enable AC Transit to purchase buses with funds that

22 would not otherwise be eligible for that purpose. RT 179:11-15. Therefore, the preventive

23 maintenance allocations did not necessarily result in any net gain in operating revenue. RT 249:16-

24 250:7. More importantly, in 2005, MTC revised its TCP process to allow a ten percent flexible set-

25 aside by which operators could use their share of funds for whatever scored project they chose,

26 including preventive maintenance, but specifically limited this use to twice in a twelve-year period.

27 RT 996:11-997:16; Exhs. 504, 505. Thus, the current policy still limits the use of these funds for

28 operating costs.

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1

The second practice challenged by Plaintiffs that relates to committed funds is MTC’s policy

2 of committing funds to expansion that could be used instead for capital rehabilitation. For example,

3 Plaintiffs point to State/Regional Transportation Improvement Program (STIP/RTIP) funds, which

4 can generally be used for capital rehabilitation. RT 294:14-20. These funds, however, must go to

5 projects that are chosen initially by county congestion management agencies, and only then brought

6 to MTC for inclusion in the RTP. RT 959:13-18. MTC’s sole role is to evaluate these projects to

7 determine consistency with the RTP. RT 960:9-16. In light of MTC’s limited role in this process,

8 Plaintiffs have not shown that MTC’s decisions on STIP/RTIP funds have a significant adverse

9 impact on the Plaintiff Class.

10

Plaintiffs’ expert, Mr. Rubin, expressed his opinion that MTC’s practices with regard to the

11 allocation of committed funds (together with its practices regarding uncommitted funds) produced a

12 disparate impact on high-percentage minority operators. He testified that AC Transit’s operating

13 shortfall as a percentage of its operating budget was higher than that of any of the lower minority

14 operators, and that the average for all high-minority operators was almost three times that of the

15 lower-minority operators. Tr. Ex. 113, ¶¶ 99-102, Ex. F. The Court was impressed by Mr. Rubin’s

16 deep expertise in transportation planning and his forceful advocacy on behalf of Plaintiffs in this

17 case. However, by virtue of his position as an expert for Plaintiffs, he was not hired to provide a

18 neutral viewpoint. In particular, the Court does not credit his analysis on this point because he

19 unilaterally added approximately $500 million to AC Transit’s projected 2005 RTP operating

20 shortfall without making similar adjustments for other operators. RT 528:13-529:11. While Mr.

21 Rubin explained that he did so to account for a reduction of service prior to the 2005 RTP (RT

22 528:13-25), AC Transit had already included those service cuts in the information given to MTC

23 prior to the issuance of the 2005 RTP. On cross-examination, Mr. Rubin admitted that he did not

24 adjust GGT’s operating shortfall similarly, even though it had also made large cuts, citing GGT’s

25 falling demand as the basis for the cuts and his rationale for treating it differently in his analysis. RT

26 593:4-594:2. Yet AC Transit’s ridership had also declined steadily, if modestly, from a peak in FY

27 2000-2001. See Tr. Ex. 1195 at 1-16 (May 2004 STRP); Stipulation re: Ridership, Revenue Vehicle

28 Miles and Revenue Vehicle Hours (docket # 371) at Ex. C. Moreover, Mr. Rubin conceded that he

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1 did not analyze GGT’s service in detail so he could not say whether the decline in ridership was the

2 cause or rather the result, in whole or in part, of cuts in service, insofar as its customers in affluent

3 Marin County could react to cuts in service that made bus travel less convenient by switching to

4 cars, perhaps to a greater extent than AC Transit’s customers. RT 513:18-514:9.

5

Mr. Rubin also acknowledged that he did not make a similar adjustment for VTA either,

6 despite its service cuts, citing a different reason: VTA’s projected increase in future service due to

7 anticipated population and employment growth and its greater access to local (sales tax) funding set

8 forth in the 2005 RTP. RT 594:20-595:1; Tr. Ex 213 at 2.1-23. Yet the same RTP goes on to

9 project a deficit for VTA, despite its access to local funds and planned fare increases, that “will have

10 to be eliminated either through additional funding or service cutbacks.” Tr. Ex. 213 at 2-1-24.

11 Finally, Mr. Rubin had to acknowledge that all of the operators were cutting service as of the early

12 part of the fiscal year 2003-2004. Thus, the operators had either already made cuts or their budget

13 data showed imminent planned cuts at the time they supplied data to MTC for use in the 2005 RTP

14 in response to its call for data during the period of June through December 2003. RT 595:23-598:6.

15 This evidence seriously undermines the proffered rationale for only adjusting AC Transit’s data. On

16 the other side of the ledger, the evidence cited by Plaintiffs in support of this unilateral adjustment

17 (see Pls.’ Post Trial Brief at 16:10-26) is ambiguous at best and does not persuade the Court.

18

Mr. Boedeker testified more persuasively on this point that a sounder statistical comparison

19 would adjust all the operators similarly for any cuts, or use unadjusted data for all of them. Indeed,

20 without the one-sided adjustment of AC Transit’s operating shortfall, the projected operating

21 shortfall for AC Transit is only one percent, the lowest operating shortfall per rider for the five

22 operators with operating shortfalls. RT 743:24-744:10. Mr. Boedeker testified that MTC funded

23 about 95% of AC Transit’s operating shortfall, a higher percentage than any other operator with a

24 shortfall, although less than the 100% funding of operating shortfalls of SamTrans (a higher

25 minority bus operator) and BART (a lower minority rail operator). RT 749:15-750:5; Tr. Ex. 1908.

26 AC Transit would have had a much higher operating shortfall than any of the other five operators

27 with shortfalls if not for MTC’s funding. Indeed, AC Transit starts at a disadvantage compared to

28 other operators in terms of its ability to raise its own local funds, quite apart from any decisions by

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1 MTC. For example, 80% of VTA’s operating budget is supplied by local or state sales tax

2 measures. RT 910:10-20. Similarly, between 50% and 60% of the revenues for GGT’s budget

3 comes from Golden Gate Bridge tolls. RT 973:1-4. Further, Muni’s local and state dedicated funds

4 constitute approximately 70% of its annual operating expenses. RT 1010:22-1011:5; Tr. Ex. 1908.

5 MTC has no influence over these funds and cannot control operators’ access to them. RT 638:17-

6 639:14. By contrast, AC Transit receives less support from dedicated local and state funds for

7 reasons that have nothing to do with MTC. RT 641:2-643:6. Specifically, the only tax that AC

8 Transit can put on the ballot is a parcel tax, which requires a two-thirds majority vote. Parcel taxes

9 impose a uniform fee per property owner regardless of the size of the property. RT 136:7-137:3;

10 150:17-151:24; 536:14-19. Although three parcel tax measures proposed by AC Transit have passed

11 in recent years, they do not generate as much revenue as sales taxes. RT 136:20-22; 632:20-23;

12 680:19-23. Therefore, even if MTC funded the same percentage of each operator’s projected

13 operating shortfall, the operators would remain in different positions. Thus, to some extent, the

14 argument is whether AC Transit’s glass is half full due to MTC’s funding some of its shortfall or

15 half empty due to MTC’s failure to allocate additional funding to AC Transit over and above other

16 operators who do not need as large subsidies from non-dedicated sources.

17

Other significant differences between the seven largest operators in the Bay Area compound

18 the difficulty of making valid comparisons between them (the proverbial “apples and oranges”

19 issue). First, some operators are bus only (AC Transit and SamTrans), one is heavy rail only

20 (Caltrain), one is both light and heavy rail (BART), one is bus and ferry (GGT), one is electric and

21 diesel buses, light rail, historic trolleys, and cable cars (Muni), and one is bus and light rail (VTA).

22 See Joint Glossary at 3-5, 8, 11, 15, 18-19. Second, the operators are functionally distinct in that rail

23 systems constitute the “backbone” of a regional transportation system in that they serve the “long

24 haul distance” and focus on commuter travel, while buses and light rail provide more “short haul”

25 service on streets and freeways, complementing to the rail systems. RT 1108:14-1109:1;1096:7-

26 1097:25. Third, the operators are also differently situated as to certain funding eligibility by

27 geography, with AC Transit, BART, Muni, GGT and SamTrans all operating within the San

28 Francisco/Oakland urbanized area, while VTA operates within the San Jose urbanized area and

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1 Caltrain operates in both. RT 688:4-9; Tr. Ex. 213. Fourth, as discussed below, the operators are

2 also distinct in their ability to generate their own revenue. Specifically, while some operators may

3 propose sales tax ballot measures, AC Transit does not have authority to do so. Finally, the cost

4 structures are very different; bus systems have lower capital costs than rail systems. RT 618:7-10;

5 Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at 82.

6

Defining the appropriate comparison groups to assess disparate impact is further complicated

7 by the Bay Area’s “majority minority” population of transit users, as 61% of all riders are

8 minorities. Plaintiffs’ bifurcation of operators into “high minority” as those with 70% or above

9 minority ridership, and “low minority” as those with 60% or below minority ridership, draws

10 support from MTC’s use of a 70% benchmark to analyze disparate impact for Title VI monitoring

11 purposes. Yet, the margin of error of three percent makes it uncertain whether some of the operators

12 are correctly classified by this approach. For example, SamTrans is estimated to have a 70%

13 minority ridership, but given the margin of error, may fall below (or above) 70%. RT 630:3-6.

14 Similarly, Muni has a 58% minority ridership, but with the margin of error, could have as much as

15 61% (or as low as 55%). Further, analyzing the seven operators on a continuum, as MTC’s

16 statistical expert did (among other analyses), rather than bifurcating them in a somewhat arbitrary

17 way, also makes sense, and generally did not show a statistical correlation between MTC funding

18 and level of minority ridership. See, e.g., Tr. Ex. 1908 (graph entitled MTC Operating Shortfall as a

19 Percentage of Operating Budget).

20

While Plaintiffs also argue that rail operators as a whole have 51.6% minority ridership as

21 compared to bus operators as a whole with 66.3% minority ridership, bus operators collectively still

22 fall below Plaintiffs’ chosen high minority threshold of 70%. RT 522:10-17; 766:15-17. Further,

23 although Plaintiffs characterize SamTrans as high minority/bus and Caltrain as low minority/rail, the

24 complex interrelationships between the operators undercuts any rigid classification into stand-alone

25 high and low minority operators engaging in a single mode of transit. For example, Caltrain

26 operates under a joint powers agreement between the San Francisco Municipal Transportation

27 Agency, the Santa Clara Valley Transportation Authority and the San Mateo County Transit District

28 (SamTrans), each of which have a role in the operation of Caltrain, and each of which also operate

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1 bus service. RT 859:7-12; 871:1-16. Class members, including a named representative, have used

2 both AC Transit and BART. See, e.g., Declaration of Vivian Hain in Supp. of Pls.’ Reply regarding

3 Mot. for Summ. Adjudication at ¶ 26; Declaration of Rebecca Jones-White in Supp. of Pls.’ Reply

4 regarding Mot. for Summ. Adjudication at ¶ 8.

5

Finally, looking at the data from the viewpoint of absolute numbers of minority riders

6 advantaged or disadvantaged by MTC’s funding policies, as MTC urges, the picture becomes more

7 complicated than Plaintiffs portray it. Although absolute numbers are not the focus of disparate

8 impact analysis, they do provide some useful context. At bottom, Plaintiffs’ main complaint is that

9 MTC facilitates expansion of costly capital-intensive rail and light rail, especially by BART, instead

10 of channeling more funds to bus service, especially by AC Transit. Yet in FY 2005-06, BART

11 carried a significantly higher total number of passengers, over 101 million, so with a minority

12 percentage of 53%, its total minority passengers were over 53 million. See Joint Proposed Findings

13 of Fact and Conclusions of Law (docket # 291) at ¶¶ 55-56. By contrast, in FY 2005-06, AC Transit

14 carried only 65 million passengers (approximately one-third less), and at 78% minority, the total

15 number of AC Transit’s minority passengers was approximately 51 million, or 2 million fewer. See

16 id. Yet it is also true that during that time period any funding practice that favored BART over AC

17 Transit benefitted BART’s approximately 47 million white riders, who make up 47% of BART’s

18 total ridership of approximately 101 million, compared to AC Transit, which has less than a third of

19 the absolute number of white riders (14.3 million) that BART has, and less than half of the

20 percentage of white riders of BART (22%).

21

Plaintiffs’ reliance on Vehicle Revenue Miles (“VRM”) to make comparisons between

22 operators using different transit modes is not entirely persuasive. VRM is the total number of miles

23 that each transit vehicle is in revenue service (i.e., excluding miles traveled to and from storage

24 facilities, and other deadhead travel), and is only one of several measures commonly used to

25 evaluate transit service. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291)

26 at ¶ 74. VRM is affected by a number of factors, including service choices by operators,

27 topography, geographic coverage and changes to service areas. RT 1422:19-1423:5. As Mr. Rubin

28 acknowledged, comparing transit service is more “an art than a science.” RT 711:6-15. He testified

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1 that AC Transit, SamTrans and VTA had decreases in their VRM over the period from 1993 through

2 2007, whereas BART and Caltrain had significant increases in VRM over the same period, and

3 Muni had a slight increase in VRM. RT 507:5-511:17. Yet Mr. Rubin’s analysis also showed that

4 GGT, which has the lowest minority ridership, suffered greater decreases in VRM over the same

5 period than did AC Transit. See Tr. Ex. 765. While Plaintiffs are correct that one “outlier” does not

6 invalidate a statistical analysis, GGT, as the “whitest” of the seven Bay Area operators with only

7 38% minority riders, provides a strong counter example to Plaintiffs’ analysis that merits further

8 investigation. Yet Mr. Rubin acknowledged that he did not analyze it in much detail. RT 514:1-9.

9

Another measure is “Vehicle Revenue Hours” (“VRH”), which represents the total number

10 of hours that each transit vehicle is in revenue service, including layover time. The measure also

11 excludes hours consumed while traveling to and from storage facilities, and during other deadhead

12 travel. See Joint Proposed Findings of Fact and Conclusions of Law (docket # 291) at ¶ 76. Mr.

13 Rubin criticized the VRH metric as not accounting for the fact that riders use transit services to

14 travel distances, not hours, and as influenced by traffic congestion. RT 506:17-507:3. Yet he

15 conceded that VRH is a “useful” measure. RT 506:15.

16

Mr. Boedeker analyzed the seven largest operators using a VRH metric, similar to the

17 analysis done by Mr. Rubin with respect to VRM. Analyzing VRH for the period of 1995 through

18 2007, Mr. Boedeker opined that AC Transit generally followed the same trends in terms of increases

19 and decreases over time as the other six large transit operators. RT 759:8-25; Tr. Ex. 1908.

20 However, he relied on two graphs plotting VRM and VRH that provided a distorted impression of

21 the data. For example, with respect to his analysis of VRM, Mr. Boedeker plotted AC Transit on the

22 left axis with VRM ranging from 15,000 to 25,000, a difference of approximately 67% between the

23 low and high points. The remaining six operators are plotted on the right axis with VRM ranging

24 from 100,000 to 130,000, a difference of only approximately 30%, or less than one-half the

25 magnitude of AC Transit’s VRM range. Even if, as suggested by Mr. Boedeker, the Court were to

26 ignore the part of the graph with no data, the percentage differences in the VRM ranges are

27 significant (30% versus 20%). RT 796:6-798:2.

28

Under either analysis, however, the evidence reflects that AC Transit has experienced a

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1 somewhat steeper downward trend in service since a peak in FY 2002-2003, than all other large

2 operators combined, who also trended down but less steeply from a peak in FY 2001-2002. See

3 Stipulation re: Ridership, Revenue Vehicle Miles and Revenue Vehicle Hours (docket # 371) at Ex.

4 A, B; Tr. Ex. 1908;5 Tr. Ex. 113, Ex. I.6 Specifically, AC Transit had a decrease of approximately

5 7.5% in VRM and a decrease of approximately 11.8% in VRH for the period from 2002-2003 to

6 2006-2007. See Stipulation re: Ridership, Revenue Vehicle Miles and Revenue Vehicle Hours

7 (docket # 371) at Ex. A. This evidence lends some support to Plaintiffs’ argument that funding

8 practices disproportionately impact AC Transit’s service level during the statute of limitations

9 period. However, the snapshot of AC Transit’s service level trend varies depending on the starting

10 point for the calculation. For example, AC Transit ended the period from 1995-1996 through 2006-

11 2007 at almost the same level of service as it began, with a very slight decrease (0.6%) when

12 measured in VRM, and a slight increase (1.9%) when measured in VRH. See id. Over an even

13 longer period, however, from 1992-1993 through 2006-2007, AC Transit’s VRM fell a little more

14 (7.5%). Of course, the farther back the analysis goes, the more the data reflects decisions that are

15 outside the statute of limitations.

16

While Mr. Boedeker’s two flawed graphs described above were not persuasive, his other

17 analyses and graphs effectively countered Plaintiffs’ claims that MTC’s process for allocating

18 committed federal formula funds has a substantial disproportionate adverse impact on high-minority

19 operators like AC Transit. Mr. Boedeker analyzed operating shortfalls as a percentage of operating

20 budgets for the seven largest operators against the percentage of minority ridership. See Tr. Ex.

21 1908 (graph entitled MTC Operating Shortfall as a Percentage of Operating Budget). He found that

22 there was no correlation between operating shortfalls as a percentage of operating budgets and

23 minority ridership. For example, SamTrans, at 70% minority, classified by Plaintiffs as a high

24 minority operator, had no operating shortfall as a percentage of its operating budget, yet GGT, at

25
5 See graphs entitled Total AC Transit Revenue Vehicle Miles vs. Total Aggregate Revenue 26 Vehicle Miles of Other Large Operators and Total AC Transit Revenue Vehicle Hours vs. Total
Aggregate Revenue Vehicle Hours of Other Large Operators. 27
6 See graphs entitled Total AC Transit Revenue Vehicle Miles vs. Total Aggregate Revenue 28 Vehicle Miles of all Operators Less AC Transit, and Total AC Transit Revenue Vehicle Hours vs. Total
Aggregate Revenue Vehicle Hours of all Operators Less AC Transit.

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1 38% minority being the lowest minority operator, had an operating shortfall of 4.5% of its operating

2 budget.

3

As addressed above with respect to standing, the question of causation with regard to MTC’s

4 practices in connection with committed funds is complicated. The RTP is a planning document,

5 whose projections do not necessarily come to pass. For example, even though five of the top seven

6 operators had projected operating shortfalls in the 2005 RTP (Ex. 213 at 2.1-2), none of those

7 operators had cut service as of the time of the trial. Caltrain and AC Transit have added service. RT

8 552:1-5; Bruzzone DT 12:19-23. And although Plaintiffs’ expert forecast a $14 million shortfall for

9 FY 2007-08, in fact AC Transit ran a $3.8 million surplus that year (although it was projected to

10 have a $3.8 million deficit for the following year). RT 1449:14-24, Tr. Ex. 1895 at 9.

11

Economic fluctuations also have a significant impact on actual shortfalls. RT 882:25-883:5

12 (poor economy causes ridership declines, which affects fare revenue); 908:1-18 (state sales taxes

13 also affected by economy); 972:12-22 (poor economy also affects Golden Gate bridge toll revenue).

14 For example, even though the 2001 RTP did not project operating shortfalls for any operator other

15 than AC Transit, all transit operators saw major revenue sources begin to fall in 2001 as a result of

16 the dot com crash, prompting all of the top seven operators to cut service during that period. RT

17 549:16-20; 907:5-25. On the other hand, unexpected windfalls do on occasion occur, although less

18 often than they are desired. In one instance, after this lawsuit was filed, MTC programmed a portion

19 of larger than expected CMAQ funds to AC Transit’s Bus Rapid Transit project that was included in

20 Resolution 3434. RT 290:11-18. However, AC Transit did not get any funds from a separate

21 windfall of STP and CMAQ funds in 2004-2005. RT 284:13-285:9.

22

Nonetheless, Plaintiffs have shown that MTC’s projections, particularly those in the near

23 future, constitute a substantial factor contributing to service reductions by AC Transit. It is true that

24 other factors, such as unanticipated economic recessions that reduce state sales tax revenue or

25 unexpected federal funding windfalls, may confound expectations. Yet the planning process is not

26 intended to be a meaningless paper exercise, but instead is designed to guide decision-making.

27 Indeed, while MTC’s Ms. McMillan was not as direct in her initial testimony at trial on the subject

28 of the impact of projected shortfalls, she had to acknowledge that in her deposition she testified that

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1 she had warned the transit operators at a Partnership Board meeting that they must address “now”

2 the “dangerous lines down the road” shown by projected operating shortfalls. RT 396:4-9. Mr.

3 Rubin testified that projected operating shortfalls are a substantial factor. RT 533:7-9. MTC’s

4 expert Dr. Cervero also acknowledged, when questioned about AC Transit’s service cuts, that:

5 “[t]hat’s what deficits, shortfalls prompt you to do.” RT 1202:24-25. Further, transit operators take

6 operating shortfalls seriously and plan well in advance to make responsive service cuts if they

7 cannot secure additional funds through raising fares or other means. See, e.g., RT 134:15-17 (“So

8 probably a year or two out we would go from there merely being red flags to actually trying to plan

9 what we were going to do in terms of service cuts or additional income.”): 893:21-894:10 (policy of

10 SamTrans and Caltrain is to plan ahead to address projected shortfalls).

11

In conclusion, Plaintiffs have shown that MTC could take at least some additional steps to

12 allocate committed funds in a way that would somewhat alleviate AC Transit’s shortfalls. However,

13 on balance, Plaintiffs have not met their burden of showing that MTC’s funding practices regarding

14 committed funds have a significantly disproportionate adverse impact on the Plaintiff Class.

15

Uncommitted funds

16

The Court determined at the summary judgment stage that MTC has a facially neutral

17 practice of failing to cover operating shortfalls in the RTPs based on MTC’s four step funding

18 process that culminates in the assignment of uncommitted funds. Aug. 21, 2008 Order on Summ.

19 Adjudication/Judgment at 22:9-10. Uncommitted or flexible funds, which include STP, CMAQ and

20 STIP/RTIP funds, can be used for transit, highway, streets and roads. See Joint Proposed Findings

21 of Fact and Conclusions of Law (docket # 291) at ¶ 102. Due to the restriction on the use of CMAQ

22 funds for operations to only the first three years after a new service is launched, Mr. Rubin does not

23 recommend their use for operating expenses. RT 495:5-21. STIP/RTIP funds, as discussed above,

24 must be used for capital rehabilitation. See Cal. Gov’t Code § 14527 (a); Cal. Streets & Highways

25 Code § 164. Thus, the only category of uncommitted funds that can be used for operating purposes

26 (other than funding for the first three years of a new service by CMAQ) are STP funds. STP capital

27 funds can be transferred to the transit side and used for preventive maintenance for AC Transit and

28 many other operators in the state. RT 275:21-276:18; 277:18-278:22. MTC programs only

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1 approximately $65 million in STP funds per year (RT 277:6-10), and decides, in conjunction with

2 the Partnership Board, how to allocate those funds (RT 279:1-6). MTC’s general practice is not to

3 apply STP funding to preventive maintenance, although it could if it so chose.

4

Plaintiffs’ argument in their post-trial brief that the allocation of uncommitted funds

5 disproportionately impacts riders of high minority operators rests on Mr. Rubin’s calculations that

6 include the addition of $500 million to AC Transit’s operating shortfall in the 2005 RTP, without

7 making similar adjustments for the other largest operators. Therefore, Plaintiffs have not met their

8 burden of showing a prima facie case of showing a significant disparate impact with respect to

9 uncommitted funds.

10

MTC’s burden

11

Plaintiffs having established a prima facie case as to Resolution 3434, and assuming

12 arguendo that Plaintiffs had done so as to committed and uncommitted funds, the burden shifts to

13 MTC to show a sufficient justification for the challenged practices. The parties have a fundamental

14 disagreement about the nature of MTC’s burden. Plaintiffs argue that MTC must demonstrate a

15 strict transportation necessity through empirical validation studies, citing landmark cases that arose

16 in the employment context. See Griggs v. Duke Power Co., 401 U.S. 424 (1971); Albemarle Paper

17 Co. v. Moody, 422 U.S. 405 (1975). MTC responds that it need only show a substantial legitimate

18 justification for its actions in order to carry its burden, relying on more recent lower court cases that

19 arose in the transportation context. See New York Urban League v. State of New York, 71 F.3d

20 1031 (2d Cir. 1995); Committee for a Better No. Philadelphia v. Southeastern Pennsylvania

21 Transportation Authority, 1990 U.S. Dist. LEXIS 10895 (E.D. Pa. Aug. 9, 1990); Coalition of

22 Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110 (E.D. Ohio 1984). For the reasons

23 set forth below, the Court concludes that MTC needs to show a substantial legitimate justification

24 for its conduct, and is not confined to reliance on the particular type of proof that Plaintiffs advocate,

25 as long as MTC relies on persuasive evidence.

26

In Griggs, the plaintiffs alleged that the defendant’s practice of requiring a high school

27 education or passage of a standardized general intelligence test as a selection criterion for hiring

28 employees violated Title VII. The Supreme Court held that the touchstone for determining whether

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1 a screening device that causes a disparate racial impact is justified is a showing of business

2 necessity, and that the company had failed to make that showing. See Griggs, 401 U.S. at 431. In

3 Albemarle Paper Co. v. Moody, 422 U.S. 405 (1975), the Supreme Court stated that the burden on

4 the company was to show that a given requirement has “a manifest relationship to the employment

5 in question.” Id. at 425. The Court focused on whether the company had shown that the intelligence

6 tests were job related, and determined that there had been no showing of job relatedness where there

7 were no studies or statistics from which to determine whether the tests actually correlated to job

8 preparedness or promotability. In Larry P. v. Riles, 793 F.2d 969 (9th Cir. 1984), the Ninth Circuit

9 extended that test to the use of IQ tests as a screening device for placing students into special

10 education classes. See Larry P., 793 F.2d at 982, n. 9 (“In the Title VI disproportionate impact

11 claim in the educational situation, the defendants must therefore show that any given requirement

12 has a manifest relationship to the education in question, i.e., that the IQ tests are required by

13 educational necessity.”) (citing Board of Education of New York v. Harris, 444 U.S. 130, 151

14 (1979)). In those cases, however, unlike the case before the Court, the employment and educational

15 practices at issue were very discrete, involving a single screening or selection device (high school

16 diploma or intelligence test) applied to one population (e.g., job applicants or students), and fit

17 readily into the parameters of the Title VII analysis. In this case, by contrast, Plaintiffs challenge the

18 application of several complex budgetary practices to a host of transit operators, which are

19 differently situated as to funding and modes of service, and serve multiple, overlapping populations

20 of riders. Further, MTC’s practices in this case are subject to a complex array of statutory,

21 regulatory and administrative constraints, not to mention numerous, and sometimes competing

22 policy goals, which require making difficult trade-offs.

23

Following Griggs, the Supreme Court relaxed the necessity standard somewhat in Wards

24 Cove Packing Co. v. Atonio, 490 U.S. 642 (1989), although the import of that decision on this case

25 in the wake of Congress’s subsequent amendment to Title VII is unclear. In Wards Cove, the

26 Supreme Court stated that the business practice need not be essential to constitute a legal

27 employment practice:

28

The touchstone of this inquiry is a reasoned review of the employer's justification for his use of the challenged practice. A mere insubstantial justification in this regard

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1

will not suffice, because such a low standard of review would permit discrimination to be practiced through the use of spurious, seemingly neutral employment practices.

2

At the same time, though, there is no requirement that the challenged practice be “essential” or “indispensable” to the employer's business for it to pass muster: this

3

degree of scrutiny would be almost impossible for most employers to meet, and would result in a host of evils we have identified above.

4 Id. at 659 (internal citation omitted). After Wards Cove, Congress amended Title VII to restore the

5 prior standard of business necessity to employment cases by expressly requiring the defendant to

6 show that “the challenged practice is job related for the position in question and consistent with

7 business necessity.” 42 U.S.C. § 2000e-2(k)(1)(A)(i). Regardless of its general applicability to

8 other statutes beyond Title VII, this amendment concerns a discrete practice tied to a specific

9 position with a particular employer. Thus, the amendment does not readily translate to scrutiny of

10 MTC’s complex and multi-faceted decisions regarding differently situated operators.7

11

Courts addressing disparate impact in the transportation context have not held defendants to

12 a strict necessity standard. For example, in New York Urban League v. State of New York, 71 F.3d

13 1031 (2d Cir. 1995), the question was whether the defendant, which like MTC allocated

14 transportation funds in the region, violated Title VI by causing an unjustified disparate impact where

15 the largely minority riders of the urban subway and bus system paid a disproportionate share of the

16 cost of operating the overall transit system as compared to the largely white riders of the commuter

17 rail lines. The appellate court applied the standard of “substantial legitimate justification.” It held

18 that the district court erred in finding a disparate impact based on the farebox recovery ratio because

19 the district court failed to also find that such a ratio was a reliable indicator. See New York Urban

20 League, 71 F.3d at 1038.

21

Lower courts have applied a more relaxed burden than the appellate court in New York

22 Urban League. In Coalition of Concerned Citizens Against I-670 v. Damian, 608 F. Supp. 110 (E.D.

23

24

7

Some commentators have questioned the applicability of Wards Cove to cases outside

25 of the Title VII context. See, e.g., Johnson, Disparity Rules, 107 Colum. L. Rev. 374, 396 (2007).

Others recognized that the legal question of the application of the business necessity amendment to 26 disparate impact cases based on other statutes remains unsettled, with legitimate arguments both for and

against. See, e.g., Vartanian, et al., Disparate Impact Discrimination: Fair Lending at a Crossroads, 49 27 Consumer Finance Law Quarterly 76, 80 (1995). This Court does not attempt to decide this question

as a general matter regardless of context, but instead seeks to find the proper standard for the specific 28 issues presented here, taking its guidance from the case law on disparate impact in the mass transit

context.

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1 Ohio 1984), the question was whether the construction of a highway through low income, high

2 minority areas in the city of Columbus had a disparate impact in violation of Title VI. The court

3 described the defendants’ burden after the plaintiffs met their prima facie case as requiring them to

4 “present a justification for their actions.” Id. at 127. The court determined that the defendants met

5 their burden of justifying the location of the highway by “articulating legitimate nondiscriminatory

6 reasons for the location.” Similarly, in Committee for a Better No. Philadelphia v. Southeastern

7 Pennsylvania Transportation Authority, 1990 U.S. Dist. LEXIS 10895 (E.D. Pa. Aug. 9, 1990), the

8 question was whether the transportation authority’s allocation of subsidies had a disparate impact on

9 minorities who used the city’s transit, as opposed to others who used the regional rail system. The

10 court articulated the defendant’s burden as requiring a showing that the conduct was based on

11 legitimate, nondiscriminatory reasons. Id. at *9. The court found that the defendant met its burden

12 by justifying the use of cross-subsidization as necessary to stabilize regional rail fares, maintain

13 service to the area, lure back regional rail riders and maintain a balanced budget, as it determined to

14 be but for the transit needs of the entire region in its business judgment. None of these cases

15 required the defendant to conduct a rigorous statistical validation study to meet its burden.

16

This Court concludes that the standard of proving a substantial legitimate justification set

17 forth in New York Urban League most appropriately describes the burden on MTC here to rebut

18 Plaintiffs’ non-robust prima facie showing. This showing may be made by a preponderance of

19 competent, relevant evidence, which need not consist of rigorous statistical studies as long as it is

20 persuasive. The lesser burden as articulated by the two district courts noted above may too closely

21 resemble the reduced burden on defendants for rebutting prima facie showings in disparate treatment

22 cases under Title VII (merely articulating a legitimate, nondiscriminatory reason), as opposed to

23 disparate impact cases. At the same time, an overly strict requirement of establishing transportation

24 necessity in the sense of indispensability is not appropriate for judging the complex policy decisions

25 and tradeoffs that MTC must make in allocating funds that are always too scarce among competing

26 legitimate needs to achieve the myriad goals for the region mandated by the planning statute.

27 Moreover, MTC must do so while planning for growth in the region, where approximately nine

28 million people are expected to live by the year 2035. RT 899:13-19. For example, while

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1 preservation of the existing transportation system is one important priority, MTC must also further

2 the goals of increasing the safety and security of the transportation network, improving

3 interconnectivity, protecting and enhancing the environment and promoting energy conservation and

4 smart growth. 23 U.S.C. § 134(h)(1)(A)-(H). To the extent that MTC exercises discretion in doing

5 so, any particular decision or policy would virtually always be vulnerable to the claim that it was not

6 strictly necessary, which would set too high a bar. Nor are such complex policy decisions and

7 tradeoffs in the region’s multifaceted and interconnected transportation systems readily subject to

8 the kind of statistical validation studies that Plaintiffs point to from cases assessing discrete binary

9 decisions such as whether or not an IQ test is a valid selection device for a particular job or

10 educational track. It is one thing to require statistical proof of a correlation between job

11 performance and IQ, but would be quite another to require regional planning agencies engaged in

12 the kind of complicated, long-term planning and funding processes at issue here to provide such

13 studies for their multi-faceted decisions involving a host of variables. At the same time, a

14 requirement of showing a substantial legitimate justification, not merely articulating any legitimate

15 reason, provides a safeguard against illegal discrimination masquerading as a neutral policy.

16

MTC presented evidence that in formulating the challenged policies, it relies in large part on

17 the advice of the Partnership Board, which consists of representatives of all the regions’s transit

18 operators, including AC Transit, its Congestion Management Agencies (“CMAs”), its Air Quality

19 Districts, its cities and counties and the Federal Transit Administration (“FTA”). RT 168:24-

20 169:10; 860:5-15; 862:7-11; 864:11-18; 865:17-866:10. Plaintiffs argued that MTC’s reliance on

21 the supposed consensus of the Partnership Board to make its decisions does not constitute a

22 substantial legitimate justification because the consensus is not unanimous and operators like AC

23 Transit feel forced to acquiesce or risk offending a key source of funding. Although the Partnership

24 Board is advisory only and does not require unanimity in its decisions (RT 235:8-16; 862:22-864:8),

25 and the Court recognizes that operators do not always feel at complete liberty to risk giving offense

26 to MTC, on balance the evidence showed that MTC’s reliance on the Board to help set policy is

27 substantially justified. While Mr. Peeples testified that in his view, consensus is “often heavily

28 coerced” (RT 167:21), the evidence showed a more nuanced situation. Mr. Peeples based his belief

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1 on his view that the former general manager of AC Transit had difficulty getting items on the

2 Partnership Board’s agenda and finally gave up. RT 167:23-168:5. Mr. Peeples acknowledged,

3 however, that the current general manager of AC Transit has been more successful in dealing with

4 the Partnership Board and successfully persuaded MTC to make an exception to their preventive

5 maintenance policy to permit use of preventive maintenance funds for operating expenses, to AC

6 Transit’s benefit. RT 169:18-170:14. The Court was impressed by Mr. Peeples’s dedication to

7 public service and to meeting the needs of poor minority riders of AC Transit, and has no doubts

8 about the sincerity of his beliefs. Nonetheless, as an elected Board member who is an advocate for

9 maximizing funds for the constituents whom he represents, his viewpoint is necessarily focused on

10 what he perceives as best for AC Transit, rather than for the transportation system as a whole. By

11 contrast, MTC must balance competing interests and satisfy diverse and to some extent conflicting

12 mandates. Having all the stakeholders work together to achieve a general policy consensus, even if

13 less than unanimous, is an important legitimate justification.

14

Resolution 3434 must strike a balance in long range transportation planning that preserves

15 and upgrades the existing physical plant and its operations, while anticipating and accommodating

16 growth, and meeting other legitimate statutorily required objectives. RT 1090:9-14; 1091:1-8;

17 1095:13-19; 1108:4-7. Plaintiffs’ argument that Resolution 3434 runs afoul of MTC’s mandate to

18 preserve the existing system above all else is not persuasive. Plaintiffs’ expert opined that

19 preservation of the system should be the first priority, trumping all other goals, but his opinion is not

20 adequately supported by the statute upon which he primarily relies. See 23 U.S.C. § 134(h)(1); RT

21 487:14-19; 1385:23-1386:2. Further, Mr. Rubin acknowledged that preservation of the existing

22 system should yield when, for example, travel patterns change or an operator creates a more efficient

23 service. RT 500:4-501:11.

24

At the same time, the Court also disagrees with the other extreme advocated by MTC’s

25 expert, Dr. Cervero, that preservation of the existing system under Section 134 means only

26 preservation of the capital plant, to the exclusion of maintaining a level of service such as existing

27 bus routes. RT 1126:5-7 (“I think ‘preservation’ tells us focusing on capital investment,

28 rehabilitation maintaining an asset which is in place.”). Ms. McMillan testified more persuasively

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1 that maintaining and sustaining the existing system requires consideration of both the physical plant

2 and the operation of services. RT 1248:18-23. If preserving the system meant new buses sitting idle

3 in the garage because the drivers could not be paid, the statutory mandate would be hollow.

4

While the experts and Ms. McMillan testified as to their interpretation of the governing

5 planning statute in support of their opinions on planning priorities, statutory construction is a

6 question for the Court, which ultimately did not find the expert testimony particularly helpful on this

7 issue. The express language of the statute provides for consideration of projects and strategies that

8 promote nine different goals, many of which are multi-faceted:

9

(h) Scope of planning process.--

10

(1) In general.--The metropolitan planning process for a metropolitan planning area under this section shall provide for consideration of projects and strategies that will--

11

(A) support the economic vitality of the metropolitan area, especially by enabling global competitiveness, productivity, and efficiency;

12

(B) increase the safety of the transportation system for motorized and nonmotorized users;

13

(C) increase the security of the transportation system for motorized and nonmotorized users;

14

(D) increase the accessibility and mobility of people and for freight; (E) protect and enhance the environment, promote energy conservation, improve the

15

quality of life, and promote consistency between transportation improvements and State and local planned growth and economic development patterns;

16

(F) enhance the integration and connectivity of the transportation system, across and between modes, for people and freight;

17

(G) promote efficient system management and operation; and (H) emphasize the preservation of the existing transportation system.

18

19 23 U.S.C. § 134(h)(1). While preservation of the existing system is clearly a priority to be

20 considered in the planning process under Section 134, it is listed last and is not the only

21 consideration to the exclusion of all the others set forth. Rather, preservation of the existing system

22 must be harmonized with numerous other goals in light of the limited funding available to the region

23 and the fact that the majority of that funding has restrictions on its use for bus operations. For

24 example, while Plaintiffs criticize the use of funding for BART expansion to the airports, rather than

25 for existing AC Transit bus operations, that expansion furthers several of the goals enumerated in

26 Section 134, such as enhancing the connectivity of transportation systems across and between

27 modes, improving mobility by reducing congestion on highways, and increasing safety and security

28 of the transportation system by providing an alternative to road travel in the event of a disaster such

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1 as an earthquake.

2

In addition, the evidence shows that high minority operators, as classified by Plaintiffs,

3 endorsed and supported financially some of the major Resolution 3434 projects that Plaintiffs fault

4 as diverting funds from bus service to the detriment of minority riders. For example, a high

5 minority operator, VTA, voluntarily contributed more than $3 billion in revenues to finance the

6 BART to San Jose project’s construction, underscoring the perceived benefit to its large minority

7 ridership of 70% (the threshold advocated by Plaintiffs). RT 613:3-9; 15-23. Similarly, Caltrain’s

8 “baby bullet” train project is supported financially by Muni, SamTrans and VTA. Like VTA,

9 SamTrans is classified by Plaintiffs as a high minority operator. And AC Transit itself is part of the

10 Transbay Joint Powers Board, which is the project sponsor of the Transbay Terminal project, as is

11 another high minority operator, SamTrans. Thus, high minority operators view the expansion of

12 BART and Caltrain, and the improvement of inter-operator and intermodal connectivity afforded by

13 the Transbay Terminal, as so beneficial to their riders that they have chosen voluntarily to spend

14 their own scarce dollars on these projects. These actions provide powerful evidence of a substantial

15 legitimate justification.

16

Further, MTC has assisted AC Transit in finding funding sources for its Bus Rapid Transit

17 and enhanced bus projects that MTC did include under Resolution 3434, even though AC Transit

18 had not met MTC’s criterion of securing such funding itself as the project sponsor. MTC did not

19 fund all of AC Transit’s projects because of the lack of secured funding and the large scope of the

20 projects. RT 1051:7-1053:3. Because AC Transit’s third project of miscellaneous enhancements

21 was estimated to cost over $900 million with no committed funds, MTC essentially directed AC

22 Transit to downsize its overall request, resulting in AC Transit’s foregoing its third request. In

23 2006, MTC told AC Transit that its funding was still insufficient. The scope of AC Transit’s project

24 was reduced to the Grand/MacArthur corridor (RT 1051:7-1053:3; 1305:8-1306:6), eliminating two

25 other enhanced bus corridors. RT 431:21-432:2. Although Plaintiffs point out that the 2006 update

26 to Resolution 3434 contained an estimated $518 million in RTIP funds over the next twenty five to

27 thirty years, the county shares of those funds are not available to AC Transit projects unless those

28 projects are included in a congestion management plan adopted by a congestion management

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1 agency, not MTC. RT 611:17-612:9; 959:15-18. The congestion management agency decided that

2 significant RTIP funds would go to BART Oakland Airport connector. RT 1030:4-1031:15.

3

Finally, Resolution 3434 rail projects complement bus service by providing connectivity, and

4 help further the goal of harmonizing transportation and planned development. RT 1096:6-1097:25.

5 Resolution 3434 emphasizes building core capacity through projects like the BART extension to

6 Warm Springs and the bus rapid transit projects in Oakland, which inhibit sprawl and encourage

7 investment in urban centers. RT 1139:2-16. Resolution 3434 serves not only the suburban riders,

8 but also minority riders, with such light rail projects as the Third Street light rail in San Francisco.

9 RT 1143:4-1144:8. Plaintiffs are correct that MTC could do somewhat more to benefit AC Transit’s

10 minority riders through bus expansion projects, which can be more cost effective than rail projects,

11 and that might well be desirable. But as a matter of legal liability, the Court cannot say that MTC

12 has failed to show a substantial legitimate justification for Resolution 3434, especially with respect

13 to the actions taken within the limitations period.

14

MTC has also shown a substantial legitimate justification for the manner in which it allocates

15 committed funds. First, MTC legitimately chooses to allocate a portion of STA population-based

16 funds to small operators that receive only minimal revenue-based STA funds. RT 940:20-941:1.

17 MTC also legitimately allocates a portion of STA funds to every operator in the region to support

18 services required under the Americans with Disabilities Act. RT 941:2-4. Another portion of the

19 funds go to MTC for regional coordination programs, such as Translink, a universal fare card that

20 can be used on any of the transit systems. RT 941:5-14. Similarly, MTC has developed the 511

21 information system, which provides transit users with connectivity information for all operators. RT

22 941:15-19. These programs directly further the legitimate goals of interconnectivity and improved

23 convenience for transit users. MTC is substantially justified in funding and taking the lead on these

24 regional projects. MTC is statutorily required to encourage coordination in transit operations. RT

25 942:4-8. It would be difficult for any single operator to develop these regional projects which

26 benefit other operators’ riders as well; individual operators are understandably more focused on their

27 own transit operations. RT 941:20-942:3. Indeed, AC Transit has supported such projects,

28 becoming one of the first operators to participate in the Translink program. RT 942:9-943:3.

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1 Plaintiffs’ transportation planning expert did not testify to the contrary.

2

MTC has also dedicated over $700 million to the Lifeline Program, which defined a network

3 of transit routes identified by MTC as critical to meeting the transportation needs of low-income

4 people in the Bay Area in part from STA population-based funds and also from STA Proposition 42

5 funds. RT 1075:15-1076:7. This allocation is also substantially justified. A high percentage of AC

6 Transit’s riders will benefit from these STA expenditures because AC Transit’s percentage of transit

7 dependent riders is approximately 22%. RT 1459:2-17. Again, Plaintiffs’ transportation planning

8 expert did not testify to the contrary.

9

Further, the evidence reflects that MTC’s allocation of AB 1107 funds is substantially

10 justified. While 75% of the AB 1107 funds are statutorily allocated to BART, MTC divides the

11 remaining 25% equally between AC Transit and Muni, even though BART is eligible for the funds

12 and even though Muni has three times the ridership of AC Transit. See Joint Proposed Findings of

13 Fact and Conclusions of Law (docket # 291) at ¶¶ 55, 191, 192. This allocation proportionately

14 favors AC Transit riders.

15

MTC maximizes the use of Section 5307 funds, which are a relatively stable source of

16 funding, for “Fix It First” capital rehabilitation, rather than capital expansion. RT 967:5-968:5;

17 987:18-21. The “Fix It First” policy refers to “maintaining and sustaining the existing transit

18 system.” RT 372:9-18. The Partnership Board, which includes AC Transit, has not recommended

19 altering the scoring system for ranking projects for receipt of Section 5307 funds, even though it has

20 recommended changes to the TCP policy that MTC has adopted regarding preventive maintenance

21 funds. RT 253:7-14;1083:5-7. Moreover, the TCP policy is more favorable to bus operators like

22 AC Transit than the allocation method primarily used in the rest of the country, where funds are

23 returned to an operator based on the amount of revenue that operator generated, to the benefit of rail

24 operators. RT 1297:23-1299:22.

25

Plaintiffs criticize MTC’s “Fix it First” policy as improperly prioritizing capital

26 rehabilitation, such as replacing older buses and train cars, over funding operators’ expenses so as to

27 maintain the same level of bus service. However, if MTC were to abandon its “Fix it First” policy in

28 favor of a “Fund Operations First” policy, there would soon be too few working buses to maintain

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1 service overall and more delays due to increased breakdowns of aging buses. Diverting a large

2 amount of funds from capital rehabilitation to operations is at best a temporary, stopgap measure and

3 would quickly become self-defeating.

4

The Court acknowledges that there is some force to the Plaintiffs’ argument that in the past

5 MTC could have struck a somewhat better balance between funding operations and capital

6 rehabilitation. During the course of this lawsuit, MTC somewhat increased funding available for

7 operations through Resolution 3688, which permits MTC to program preventive maintenance funds

8 to any operator under the TCP process in two out of twelve years, regardless of need. Tr. Ex. 504,

9 505; RT 253:7-14; 259:24-260:3; 996:9-997:16. While Plaintiffs object to the limitation of two

10 years out of twelve, this Resolution strikes a substantially justified, legitimate balance between

11 funding operations more and depleting capital rehabilitation funding excessively. Although Mr.

12 Rubin testified that MTC could control the depletion of funds for other uses by implementing

13 funding caps as it has done in the past (RT 492:15-17), MTC’s limit on funding to two years out of

14 twelve is a valid use of such caps.

15

In 2001, at the request of transit operators, MTC analyzed the potential impact on the capital

16 plant if MTC were to routinely accommodate operators’ requests for preventive maintenance. RT

17 998:8-18. MTC concluded that “if preventive maintenance were fully tapped, . . . this single

18 urbanized area [San Francisco/Oakland] would wipe out the federal [funding] program.” RT

19 1001:8-10. MTC also examined the impact on the capital plant of funding just ten percent of the

20 preventive maintenance need of all the operators, and found that: “at the end of the ten-year period,

21 we will have exacerbated the estimated shortfall [of capital rehab] by 415 million bucks, moving

22 toward half a billion, just by accommodating ten percent of one urbanized area through the

23 program.” RT 620:9-621:7; 898:23-899:12; 1001:16-1002:5. Yet a ten percent transfer to

24 preventive maintenance would only provide AC Transit with approximately $4.3 million in

25 additional operating funds per year (ten percent of its $43 million eligibility for operations through

26 preventive maintenance). RT 558:24-560:1. AC Transit’s operating shortfalls in the last four RTPs,

27 however, range from $36.7 million to $360.5 million (see Second Supplemental Joint Proposed

28 Findings of Fact (docket # 353) at ¶ 306-309), so this allocation would not do much to alleviate its

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1 shortfalls. A larger shift to preventive maintenance would, of course, further exacerbate the capital

2 shortfall.

3

While Plaintiffs argued with some justification that MTC’s analysis of the effect of a ten

4 percent conversion to operating funds is overstated because not all operators have operating

5 shortfalls or would need an additional ten percent, MTC persuasively countered that even shifting

6 only half that amount to preventive maintenance would result in a substantial capital rehabilitation

7 shortfall ($207.5 million rather than $415 million). Also, as Plaintiffs’ expert acknowledged, an

8 operator that is not currently showing a shortfall could reconfigure its financial picture to show a

9 projected deficit in order to take advantage of an extra ten percent in operating funds. RT 559:12-

10 19; 1442:20-1443:22. Mr. Rubin opined that MTC could satisfy the entire region’s preventive

11 maintenance needs with Section 5307 funds (RT 491:13-18; 494:22-495:4), which account for $180

12 million per year. RT 962:23-963:2. But his suggestion that MTC could backfill this amount from

13 other funding sources, such as STP and RTIP, is not persuasive because these other funding sources

14 would be severely depleted, at the expense of important current programs that rely on those funds

15 such as road projects funded by STP. RT 557:1-558:16. Furthermore, AC Transit has not used all

16 the preventive maintenance funds that MTC has provided for operations, but instead, has decided to

17 use some of the funds for capital projects. RT 183:25-184:25; Tr. Ex. 1082. In short, the Court is

18 persuaded that MTC has shown by a preponderance of the evidence that its policy on preventive

19 maintenance funding is legitimate and substantially justified.

20

Finally, MTC has shown a substantial legitimate justification for its practice for allocating

21 uncommitted funds. As described above, RTIP and CMAQ funds are not eligible or suitable for use

22 for operations. RT 495:5-21; 952:11-953:4; 957:2-24; 958:22-959:10; 959:13-960:12. STP funds

23 constitute multi-modal capital funds of approximately $65 million per year. Of that amount, MTC

24 reasonably allocates 50 percent to transit and 50 percent to non-transit uses. RT 564:25-565:2; Tr.

25 Exs. 1694, 1887, 1094-1097. Plaintiffs’ expert did not opine that additional STP funds should

26 necessarily be shifted from roads to transit, and stated that STP funds would not be the first place he

27 would look. RT 669:13-23. Through Partnership Board consensus, priorities are set for all

28 uncommitted funds converted to transit, including the Transportation for Livable Communities

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1 Program and bicycle needs. RT 954:20-955:13. In addition to these programs, STP funds were

2 assigned to congestion management agencies, as well as to regional programs including Translink,

3 the 511 program, the Clean Air program, Lifeline, and regional bicycle and pedestrian programs.

4 RT 954:20-955:13; 669:13-23; Ex. 389, Att. B at 2. Transit dependent riders from AC Transit

5 benefit from the Lifeline program and the Transportation for Livable Communities program, and the

6 Translink and 511 programs as well as cleaner air benefit all transit riders.

7

The Court sympathizes with the predicament of the members of the Plaintiff Class, who have

8 experienced declines in bus services on which they depend to meet their basic needs, such as getting

9 to school and work safely and on time. Nonetheless, MTC has met its burden of showing a

10 substantial legitimate justification for the challenged funding practices. Therefore, the burden shifts

11 back to Plaintiffs to show an equally effective alternative with less racially disproportionate impact.

12 As described below, Plaintiffs have not met this burden.

13

Equally effective alternative

14

In their post-trial brief, Plaintiffs offer several alternatives that they believe constitute less

15 discriminatory alternatives. Although plausible, Plaintiffs did not show by a preponderance of the

16 evidence at trial that these alternatives would be equally effective while causing less racial disparity.

17 First, Plaintiffs argue that MTC could score and rank bus and rail projects together under Resolution

18 3434 based on how well they perform against criteria that have a relationship to improved air

19 quality, cost effectiveness and other regional and statutory objectives. However, Plaintiffs presented

20 no evidence as to whether this alternative would be equally effective in using Resolution 3434 funds

21 while lessening any racial disparity.

22

Second, Plaintiffs argue that MTC should modify its policy with respect to committed funds

23 to meet some or all of AC Transit’s preventive maintenance needs while backfilling the additional

24 capital shortfall out of other funding sources such as STIP/RTIP and CMAQ. However, there is a

25 limited amount of funds from all sources. If MTC uses funds from one source to cover AC Transit’s

26 operating expenses, there could well be less funding to cover another high-minority operator’s

27 needs. For example, Plaintiffs’ expert testified that MTC could use Section 5307 funds to increase

28 the amount of operating money AC Transit receives by shifting funds from other sources. RT

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1 485:5-18. He also testified that shifting funds in this way would cause increased capital shortfalls

2 that he believed could be backfilled with other funds, such as STP and RTIP, which he believed

3 should be used for operations rather than capital rehabilitation in order to preserve the existing

4 system. RT 485:19-490:7. Mr. Rubin also suggests that MTC use federal funds first for operations

5 because MTC cannot collect interest on those funds, and then use the remaining funds, which can

6 earn interest, to pay for longer term projects. RT 493:25-494:21.

7

While all the suggestions have potential merit, on balance they did not meet Plaintiffs’

8 burden. For example, whether the amount of interest that could be earned by such an approach

9 would be large enough (depending, as it does on variables outside MTC’s control, such as the rate of

10 interest, which currently appears to be at an historic low) to translate into an equally effective

11 alternative was not established. Also, Mr. Rubin did not calculate how much STP funding would

12 need to be used to backfill his proposed Section 5307 funding for operating expenses. RT 558:8-12.

13 In addition, although he acknowledged that STP funds are currently used mostly for road projects,

14 he did not analyze what would happen to projects currently funded by STP. RT 557:11-18. Further,

15 as noted above, he later backed away from advocating shifting STP funds to transit from roads.

16 Also, even though Mr. Rubin suggested that any operator should be able to use Section 5307 flexible

17 funds for all of that operator’s operating expenses, he did not study what would happen to the

18 availability of funding sources, such as Section 5307, for other uses if MTC filled even 50% of

19 every operator’s preventive maintenance needs with Section 5307 funds. RT 559:2-6. Mr. Rubin

20 acknowledged that the STP funds could not cover the backfilling requirements if every operator

21 sought Section 5307 funds for half of its preventive maintenance eligibility, but he did not think that

22 all operators would seek those funds. RT 559:7-19. This opinion, however, is somewhat

23 speculative, and depends on operators not reconfiguring their budgets to show operating shortfalls, a

24 possibility he acknowledged. Plaintiffs have not made a sufficient showing that this alternative is

25 feasible or equally effective.

26

Third, Plaintiffs argue that MTC can shift the use of uncommitted funds to fund operating

27 shortfalls on an equal footing with capital shortfalls. While it is true that, for example, STP funds

28 can be converted to transit funds and then used for preventive maintenance (RT 277:18-24), MTC

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1 has made a legitimate policy decision, in conjunction with the Partnership Board, not to prioritize

2 using STP funds for preventive maintenance and there is no evidence that any other policy would be

3 equally effective and less racially disproportionate. STP is a multi-modal program whose primary

4 purpose is funding capital rehabilitation and construction of highways, roads and bridges as well as

5 transit, but which may also be used for pedestrian and bicycle facilities. See Joint Glossary at 16;

6 RT 279:19-22. Therefore, Plaintiffs’ proposal to use most or all of the STP funds for transit

7 operating expenses would not be equally effective in meeting the broader goals of the STP program,

8 much less the overall transportation planning responsibilities of MTC.

9 Conclusion

10

Upon consideration of all of the evidence and the parties’ arguments at trial and in their post-

11 trial briefs, the Court holds that Plaintiffs have failed to prove disparate impact. Accordingly,

12 Plaintiffs are not entitled to any relief against MTC.

13 IT IS SO ORDERED.

14 Dated: March 27, 2009 15

ELIZABETH D. LAPORTE United States Magistrate Judge

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 Case3:05-cv-01597-EDL Document48 Filed11/29/05 Page1 of 32

1 BILL LANN LEE (State Bar No. 108452) blee@lchb.com
2 NIREJ S. SEKHON (State Bar No. 213358) nsekhon@lchb.com
3 LIEFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West
4 275 Battery Street, Suite 3000 San Francisco, CA 94111-3339
5 Telephone: (415) 956-1000 Facsimile: (415) 956-1008
6 Attorneys for Plaintiffs Sylvia Darensburg, Virginia
7 Martinez, Vivian Hain, and the Proposed Class; and Plaintiff Communities for a Better Environment
8 PETER D. NUSSBAUM (State Bar No. 49682)
9 pnussbaum@altshulerberzon.com DANIEL T. PURTELL (State Bar No. 147905)
10 dpurtell@altshulerberzon.com LINDA LYE (State Bar No. 215584)
11 llye@altshulerberzon.com ALTSHULER, BERZON, NUSSBAUM, RUBIN &
12 DEMAIN 177 Post Street, Suite 300
13 San Francisco, CA 94108 Telephone: (415) 421-7151
14 Facsimile: (415) 362-8064

15 Attorneys for Plaintiff Amalgamated Transit Union Local 192
16 (Counsel continued on next page)
17 UNITED STATES DISTRICT COURT
18 NORTHERN DISTRICT OF CALIFORNIA
19

20

SYLVIA DARENSBURG, VIRGINIA

Case No. C- 05-1597 EDL

21 MARTINEZ, and VIVIAN HAIN,

individuals on behalf of themselves and all PLAINTIFFS' OPPOSITION TO

22 others similarly situated;

DEFENDANT METROPOLITAN

AMALGAMATED TRANSIT UNION,

TRANSPORTATION COMMISSION'S

23 LOCAL 192; and COMMUNITIES FOR A MOTION TO DISMISS

BETTER ENVIRONMENT,

24

Plaintiffs,

Date: Tuesday, December 20, 2005

25 v.

Time: 2:00 p.m. Courtroom: E, 15th Floor

26 METROPOLITAN TRANSPORTATION

Judge: Hon. Elizabeth D. Laporte

27 COMMISSION,

28

Defendant.

488580.5

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

CASE NO. C-05-1597

Case3:05-cv-01597-EDL Document48 Filed11/29/05 Page2 of 32

1 RICHARD A. MARCANTONIO
2 (State Bar No. 139619) rmarcantonio@publicadvocates.org
3 GUILLERMO MAYER (State Bar No. 235776)
4 gmayer@publicadvocates.org ELISABETH VOIGT
5 (State Bar No. 234935) evoigt@publicadvocates.org
6 PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300
7 San Francisco, CA 94105 Telephone: (415) 431-7430
8 Facsimile: (415) 431-1048 9 Attorneys for Plaintiffs Sylvia Darensburg,
Virginia Martinez, Vivian Hain, and the 10 Proposed Class 11
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ADRIENNE BLOCH (State Bar No. 215471) abloch@cbecal.org COMMUNITIES FOR A BETTER ENVIRONMENT 1440 Broadway, Suite 701 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438
Attorneys for Plaintiff Communities for a Better Environment

488580.5

PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

CASE NO. C-05-1597

Case3:05-cv-01597-EDL Document48 Filed11/29/05 Page3 of 32

1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION .............................................................................................................. 1

4 II. FACTUAL ALLEGATIONS ............................................................................................. 5 III. STANDARD OF REVIEW ................................................................................................ 9
5 IV. SUMMARY OF ARGUMENT ........................................................................................ 10

6 V. ARGUMENT .................................................................................................................... 11

7

A. Plaintiffs Have Standing To Litigate Their Well-Pleaded Claims Of Discrimination....................................................................................................... 11

8

1. MTC Injures Plaintiffs Because Its Actions Cause Them to Receive

Inferior Transit Opportunities and Benefits .............................................. 11

9

2. Plaintiffs’ First Amended Complaint Alleges Direct Economic

10

Injury......................................................................................................... 13

3. MTC’s Intentional Discrimination Inflicts Direct Stigmatic Injury

11

On Plaintiffs .............................................................................................. 14

12

B. Plaintiffs’ Complaint Easily Satisfies Notice Pleading Requirements ................. 15

C. MTC’s Factual Assertions Do Not Support A Motion To Dismiss For Lack

13

Of Standing ........................................................................................................... 18

14

D. Plaintiffs’ Claims Are Not Barred By Statutes Of Limitations Because They Seek Injunctive Relief From Present And Ongoing Injury.......................... 24

15 VI. CONCLUSION ................................................................................................................. 25

16

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26

27

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488580.5

- i -
PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

CASE NO. C-05-1597

Case3:05-cv-01597-EDL Document48 Filed11/29/05 Page4 of 32

1

TABLE OF AUTHORITIES

2

Page

3

CASES

4 Alexander v. Sandoval,

532 U.S. 275 (2001) .................................................................................................................. 3

5 Baker v. Carr,

6

369 U.S. 186 (1962) .................................................................................................................. 2

Bazemore v. Friday,

7

478 U.S. 385 (1986) ................................................................................................................ 25

8

Buckey v. County of Los Angeles, 968 F.2d 791 (9th Cir. 1992)................................................................................................... 10

9 Butler v. Home Depot, Inc.,

1997 WL 375285 (N.D. Cal. 1997)......................................................................................... 25

10 Cholla Ready Mix, Inc. v. Civish,

11

382 F.3d 969 (9th Cir. 2004)................................................................................................... 24

City of Chicago v. Atchison, Topeka and Santa Fe Ry. Co.,

12

357 U.S. 77 (1957) .................................................................................................................... 2

13

Compet. Enterp. Inst. v. NHTSA, 901 F.2d 107 (D.C. Cir. 1990) ................................................................................................ 13

14 Conely v. Gibson,

455 U.S. 41 (1957) .................................................................................................................. 16

15 Duke Power Co. v. Carolina Environmental Study Group, Inc.,

16

438 U.S. 59 (1978) .................................................................................................................. 13

Edwards v. Marin Park, Inc.,

17

356 F.3d 1058 (9th Cir. 2004)........................................................................................... 15, 16

18

Gilligan v. Jamco Dev. Corp., 108 F.3d 246 (9th Cir. 1997)............................................................................................. 15, 16

19 Guz v. Bechtel Natl’l, Inc.,

24 Cal.4th 317 (2000) ............................................................................................................. 17

20 Kwai Fun Wong v. United States,

21

373 F.3d 952 (9th Cir. 2004)............................................................................................... 3, 15

Larry P. By Lucille v. Riles,

22

793 F.2d 969 (9th Cir. 1984)................................................................................................... 17

23

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .................................................................................................... 10, 14, 18

24 McGary v. City of Portland,

386 F.3d 1259 (9th Cir. 2004)........................................................................................... 15, 16

25 Michael H. v. Gerald D.,

26

491 U.S. 110 (1989) .................................................................................................................. 3

Northwestern School Dist. v. Pittenger,

27

397 F.Supp. 975 (W.D. Pa. 1975) ............................................................................................. 4

28

Powell v. Ridge, 189 F.3d 387 (3d Cir. 1999)............................................................................................. passim

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3 RK Ventures, Inc. v. City of Seattle,

307 F.3d 1045 (9th Cir. 2002)................................................................................................. 25

4 Robinson v. Kansas,

5

295 F.3d 1183 (10th Cir. 2002)................................................................................................. 4

Rose v. Wells Fargo & Co.,

6

902 F.2d 1417 (9th Cir. 1990)................................................................................................. 17

7

Sierra Club v. Morton, 405 U.S. 727 (1972) ................................................................................................................ 13

8 Swierkiewicz v. Sorema,

534 U.S. 506 (2002) ......................................................................................................... passim

9 United Airlines, Inc. v. Evans,

10

431 U.S. 553 (1977) ................................................................................................................ 25

Village of Arlington Heights v. Metropolitan Housing Development,

11

429 U.S. 252 (1977) .......................................................................................................... 17, 24

12

Warth v. Seldin, 422 U.S. 490 (1975) ................................................................................................................ 10

13 Western Center For Journalism v. Cederquist,

235 F.3d 1153 (9th Cir. 2000)................................................................................................. 10

14 Yick Wo v. Hopkins,

15

118 U.S. 356 (1886) ................................................................................................................ 15

STATUTES

16 22 C.C.R.

17

98101(i)(1) .............................................................................................................................. 17

28 C.F.R.

18

42.104(b)(2) ............................................................................................................................ 17

19

42 U.S.C. § 2000d et seq. .......................................................................................................................... 1

20 49 C.F.R.

21.5(b)(2) ................................................................................................................................ 17

21 49 U.S.C.

22

§ 5302(a)(1)(E)........................................................................................................................ 21 § 5303........................................................................................................................................ 6

23

§ 5303(f).................................................................................................................................... 6 § 5307.................................................................................................................................. 6, 21

24

§ 5309(d) ................................................................................................................................... 6

Cal. Gov. Code

25

§ 11135................................................................................................................................ 1, 17

§§ 66509-13 .............................................................................................................................. 6

26

§ 66520...................................................................................................................................... 6

27

28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3

RULES

4

Federal Rule of Civil Procedure Rule 8(a).................................................................................................................................. 15

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

CASE NO. C-05-1597

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1 I. INTRODUCTION

2

Ignoring the Court’s previous Order that issues of standing on a motion to dismiss

3 are properly resolved on the basis of whether allegations are sufficient, Defendant has filed a

4 second dismissal motion that invites the Court to commit error by ruling on the merits in advance

5 of discovery, contrary to the Federal Rules and caselaw. The Court should decline the invitation.

6

This civil rights action seeks declaratory and injunctive relief against Defendant

7 Metropolitan Transportation Commission (“MTC”) continuing to engage in funding practices that

8 channel resources to projects and programs that disproportionately benefit the largely white

9 ridership of Caltrain and BART at the expense of projects and programs that benefit AC Transit

10 riders who are overwhelmingly people of color, in violation of the Equal Protection Clause,

11 Title VI of the Civil Rights Act of 1964, 42 U.S.C. section 2000d et seq., and California

12 Government Code section 11135.

13

MTC initially filed a motion to dismiss arguing that Plaintiffs failed to show

14 standing, that Plaintiffs were not entitled to injunctive or declaratory relief, and that Plaintiffs

15 could not proceed on a disparate impact theory under Title VI. In its September 19, 2005 Order

16 Granting With Leave to Amend Defendant’s Motion to Dismiss (“Order”), the Court ruled that

17 the allegations supporting injunctive and declaratory relief were sufficient, as were the allegations

18 of purposeful discrimination. Order at 13-14. As to standing, the Court found that the allegations

19 in the original Complaint were insufficient, but instructed the parties as to the kinds of

20 amendments sufficient to establish standing for the three types of injury alleged.

21

As to quality of life injury, the Court ruled that Plaintiffs’ allegations of lost

22 employment opportunities; unsafe, less reliable and dirtier conditions; and lengthy commute

23 times were sufficient to constitute injury in fact, but that “Plaintiffs need to amend their complaint

24 to allege that MTC’s discriminatory funding is a substantial motivating factor in the inferior

25 quality of AC Transit’s services to transit-dependent inner-city residents and to show a substantial

26 probability that the relief they seek will remedy the injury.” Order at 11. As to economic injury,

27 the Court found that “[t]he current allegations do not suffice to show economic injury in fact,” but

28 that if Plaintiffs did amend to show cognizable economic injury, “similar allegations of causation

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1 and redressability are necessary.” Order at 6, 11. As to stigmatic injury, the Court found that the

2 original Complaint alleged discrimination that is “not so immediately apparent” or “obviously

3 demeaning” as a facial racial classification. Order at 5-6.

4

Following the road map provided by the Court, Plaintiffs filed their First Amended

5 Complaint (“Amended Complaint”) on October 11, 2005. See infra at 5-9. Faced with these

6 well-pleaded allegations, MTC shifts from the theme of its first motion (that AC Transit, not

7 MTC, is really to blame) and instead advances a new theme: that the allegations of the Amended

8 Complaint are factually unsupported. Defs. Br. 14-17. Contrary to the direction of the Court’s

9 Order to focus on the legal sufficiency of allegations for purposes of dismissal, MTC contends

10 that it has not, as a matter of fact, discriminated against Plaintiffs or subjected them to unequal

11 treatment. Such an evidentiary challenge should not be raised in a motion to dismiss, particularly

12 one based on alleged lack of standing, but is properly reserved for a summary judgment motion or

13 trial after factual and expert discovery has been completed. The challenge, in any event, is

14 misdirected and factually erroneous.

15

Initially, we note that the purpose of the standing doctrine is to ensure that

16 plaintiffs have a “personal stake in the outcome of the controversy as to assure that concrete

17 adverseness which sharpens the presentation of issues upon which the court so largely depends.”

18 Baker v. Carr, 369 U.S. 186, 204 (1962). But MTC invokes the doctrine of standing for a

19 purpose that it was never intended to serve – to reach a premature resolution of disputed facts

20 going to the merits of, and evidentiary support for, Plaintiffs’ substantive causes of action. The

21 Supreme Court has long warned against conflating the merits and standing inquiries and made

22 clear that a party does not have to establish at the outset a successful claim on the merits in order

23 to have standing to litigate that claim. See City of Chicago v. Atchison, Topeka and Santa Fe Ry.

24 Co., 357 U.S. 77, 83-84 (1957) (In case where plaintiff challenged validity of City ordinance,

25 plaintiff argued that defendant intervenor lacked standing because ordinance was invalid:

26 “[Plaintiff’s] argument confuses the merits of the controversy with the standing of [Intervenor] to

27 litigate them. [Intervenor’s] standing could hardly depend on whether or not it is eventually held

28 that” the ordinance is valid.). As Justice Brennan once observed in an analogous context, “it

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1 would be strange indeed if, before one could be granted a hearing, one were required to prove that

2 one would prevail on the merits.” Michael H. v. Gerald D., 491 U.S. 110, 147 (1989) (Brennan,

3 J., dissenting) (procedural due process case).

4

It is not surprising that MTC seeks to frame the factual contentions it raises as

5 presenting standing rather than merits issues. In light of the liberal pleading standard generally

6 applicable under the Federal Rules of Civil procedure – and, as the Supreme Court and Ninth

7 Circuit have made repeatedly clear, specifically applicable to discrimination cases – Plaintiffs

8 have clearly placed MTC on fair notice of the basis of their claims and are thus entitled to

9 proceed to discovery. See, e.g., Swierkiewicz v. Sorema, 534 U.S. 506, 510-11 (2002); Kwai Fun

10 Wong v. United States, 373 F.3d 952, 968-69 (9th Cir. 2004). If governmental defendants could

11 rely on the “causation” prong of the standing inquiry to obtain dismissal of complaints on the

12 ground that they had not actually subjected the plaintiffs to unfavorable treatment, as MTC seeks

13 to do in this case, the liberal pleading standards applicable to discrimination cases would be

14 rendered completely meaningless.

15

Moreover, even if brought as a summary judgment motion on the merits, MTC’s

16 factual contention, that it has, here and there, provided AC Transit with funds, would not

17 undermine the merits of Plaintiffs’ discrimination claim. Discrimination claims necessarily

18 involve comparisons. That MTC has provided AC Transit with some funding is not inconsistent

19 with Plaintiffs’ contention that MTC provides Caltrain and BART with comparatively more

20 funding – a contention Plaintiffs are entitled to prove after discovery. See Powell v. Ridge, 189

21 F.3d 387, 396 (3d Cir. 1999) (“The relevance and validity of these comparisons [between school

22 districts’ demographics and revenues] goes to the merits of plaintiffs’ case, not to the 23 maintenance of their complaint, and should be determined only upon a developed record.”).1

24 1 Powell also held that there is a private right of action under regulations promulgated under Title
25 VI of the Civil Rights Act to challenge programs that receive federal financial assistance from engaging in acts that have a disparate racial impact. 189 F.3d at 398-99. While the Supreme
26 Court held to the contrary in Alexander v. Sandoval, 532 U.S. 275 (2001), nothing in Alexander 27 undermines Powell’s reasoning or holding on the threshold jurisdictional question of standing to
vindicate a claim of governmental discrimination.
28

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1 Moreover, MTC attacks allegations in the Amended Complaint that provide specific examples of

2 MTC’s discriminatory conduct. MTC relies on the logical fallacy that by attacking the veracity

3 of allegations regarding individual examples of MTC’s discriminatory conduct, MTC can

4 somehow refute the more general allegations regarding MTC’s pattern and practice of

5 discrimination.

6

In the classic unequal funding challenge, school children (directly or through their

7 parents) sue state officials for the discriminatory allocation of funds to the school districts that

8 they attend. While these claims have not always prevailed on the merits, they have not been

9 rejected for lack of standing, let alone for lack of standing at the pleading stage. See, e.g., Powell

10 189 F.3d 387 (students in Philadelphia, a 77-80% minority school district, had standing to sue

11 state and may challenge a state’s racially discriminatory funding practices regarding allocation of

12 funds to different school districts); Northwestern School Dist. v. Pittenger, 397 F.Supp. 975, 980

13 (W.D. Pa. 1975) (parent had standing to challenge state funding formula that resulted in lower

14 funding to school district that his children attended, but court rejected on merits equal protection

15 claim predicated on wealth discrimination); see also Robinson v. Kansas, 295 F.3d 1183 (10th

16 Cir. 2002) (successful challenge by minority, foreign, and disabled students who attended large,

17 non-affluent school districts to state statute providing for disproportionate allocation of funds to

18 low-enrollment school districts; standing not questioned).

19

In none of these cases did the fact that the defendant – the central governmental

20 decision maker – provided the funds at issue to a third party – a school district – preclude

21 plaintiffs’ standing. In none of these cases did the court require the plaintiff students to show, in

22 order to establish standing, that the school district would improve the quality of education at the

23 particular school, particular grade level, or particular classroom that the students attended, if the

24 non-party district received greater funding from the defendant state. This was so because what

25 the plaintiffs in all of these cases sought to challenge was how they were treated by the central

26 governmental decision maker that controlled all or some of the funds upon which the third party

27 relied to provide the service at issue to the plaintiffs. In reversing a district court’s grant of a

28 motion to dismiss, the Third Circuit in Powell explained that it was not necessary to show for

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1 standing purposes that plaintiffs’ school district would ultimately receive more funding (let alone

2 whether the quality of education provided to plaintiffs would improve as a result of increased

3 funding):

4

Here, the plaintiffs complain that non-white school children in

Pennsylvania receive less favorable treatment than their white

5

counterparts because the state funds the school districts most of

them attend at a lower level than it does the school districts most

6

white school children attend. A court order directing the state to

equalize funding between these school districts would redress this

7

comparative injury, even if other sources of the school district’s

income were simultaneously reduced. 8

9 Powell, 189 F.3d at 403 (reversing grant of motion to dismiss). Like the students in the school

10 funding cases, Plaintiffs simply wish to have redressed in federal court their claim that they are

11 treated less favorably than riders on BART and Caltrain by the central governmental decision

12 maker – here MTC – that controls funds necessary to provide a public service.

13

Finally, MTC’s factual assertions are simply untrue. MTC has presented this

14 Court with a highly misleading account of the facts, citing documents for propositions they

15 plainly do not support and failing to cite other documents which directly support the allegations in

16 the Complaint, thus underscoring the need for discovery and rigorous application of the Federal

17 Rules of Evidence, as well as the inapplicability of the doctrine of judicial notice.

18 II. 19

FACTUAL ALLEGATIONS The Court’s Order summarizes the relevant facts contained in the original

20 Complaint. Order at 2-3. In light of their amendments, Plaintiffs provide the Court with a

21 supplemental summary of the Amended Complaint.

22

The San Francisco Bay Area has two separate and unequal transit systems, an

23 expanding, state-of-the-art rail system for disproportionately white, relatively affluent commuters

24 and a shrinking, racially-identifiable 80% minority bus system for predominantly low-income

25 people. See Amended Compl. ¶¶ 2-6. MTC has played a substantial role in creating this dual

26 system through its historical and on-going pattern of funding, advocacy, and other decision-

27 making practices. See id. MTC’s actions have both the purpose and effect of discriminating

28 against Plaintiffs and other bus riders of color. See id. ¶¶ 71, 74.

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1

MTC has long known that AC Transit, BART, and Caltrain have historically

2 served and continue to serve racially disparate populations. The passengers of the Bay Area’s

3 largest bus-only operator, AC Transit, are disproportionately people of color, while the

4 passengers of the two major rail-only operators, Caltrain and BART, are disproportionately white.

5 See Amended Compl. ¶¶ 30, 33-34. The disparity in the racial make-up of the ridership of these

6 three operators is statistically significant. See id. ¶ 30. According to two studies commissioned

7 by MTC many years ago, both Caltrain and BART were never designed to meet the travel needs

8 of people of color. See id. ¶¶ 31-32.

9

MTC exerts substantial control over transportation funding in the Bay Area,

10 including the level at which each transit operator is subsidized. MTC plays a substantial role in

11 determining which transportation projects and programs in the region receive funding, and at

12 what level. See id. ¶¶ 36, 46. The Complaint identifies specific examples of the ways in which

13 MTC is able and empowered to exercise this control.

14

•

RTP: One of MTC’s most significant responsibilities is the adoption of the

Regional Transportation Plan (“RTP”). Cal. Gov. Code §§ 66509-13; 49

15

U.S.C. § 5303. The RTP sets forth the region’s long-range plan for

transportation development, based on projected available financial

16

resources. 49 U.S.C. § 5303(f); Amended Compl. ¶ 38. New

transportation projects simply cannot move forward without MTC’s

17

approval because new projects must be reviewed and approved by MTC for

inclusion in the RTP in order to be eligible for virtually any state or federal

18

funding, including many Congressional “earmark funds.” See Amended

Compl. ¶ 38; Cal. Gov. Code § 66520; 49 U.S.C. § 5309(d). MTC

19

establishes the project selection and eligibility criteria for the RTP.

Amended Compl. ¶ 38. 20

•

Direct programming authority: MTC has direct programming authority

21

over a number of significant funding sources – such as formula grants

under 49 U.S.C. § 5307, as well as the Surface Transportation Program

22

(“STP”) and the Congestion Mitigation and Air Quality Improvement

Programs (“CMAQ”) – thus exercising discretion over the allocation of

23

these funds. See id. ¶¶ 37-38.

24

•

Direct and indirect control over operators’ budgets: MTC exercises direct

control over the budgets of transit operators within its jurisdiction by, for

25

example, attaching conditions to the funds that it grants to operators (thus

dictating the use of the funds granted) and deciding how much to grant to

26

particular operators (thus affecting the size of that operator’s overall

budget). MTC by its own account has direct programming and allocation

27

jurisdiction over 40% of AC Transit’s budget. See Amended Compl. ¶ 41.

MTC also exercises indirect control over transit operators’ budgets. For

28

instance, by allowing operators to use funds normally reserved for capital

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1

purposes for “preventive maintenance” (otherwise considered an operating

cost), MTC indirectly allows the operator to use scarce operating funds for

2

other purposes. Indeed, as discussed below, MTC requires AC Transit to

cut service and/or raise fares as a condition of receiving preventive

3

maintenance flexibility. See infra at 21; Exh. D at 26, 63, Exh. F at 5, 12.

MTC also has the power to reduce the size of the operator’s overall budget

4

by not allocating funds within MTC’s control to that operator (instead

allocating those funds to other operators). See id. ¶ 42.

5

•

Advocacy for additional funds: MTC is also uniquely situated as the

6

regional transportation planning agency and metropolitan planning

organization for the Bay Area to obtain funding from the state and federal

7

governments. As a practical matter, projects often cannot receive funding

without MTC’s action or support, and so its advocacy on behalf of projects

8

is critical. MTC can thus reduce the overall size of an operator’s budget by

choosing not to lobby for funding for that operator (instead deploying its

9

political capital to lobby for funds for other operators). In addition, where

state or federal legislation earmarks funds, instead of granting MTC

10

discretion, MTC is often responsible for, or is the active advocate behind,

the allocation set forth in the legislation. See id. ¶¶ 39, 42, 44.

11 In the exercise of its control over the Bay Area’s transportation purse strings, MTC

12 has engaged in a policy, pattern, or practice of discriminatory funding, by which it has

13 consistently channeled and continues to channel more money and support to projects and

14 programs that benefit the disproportionately white riders of Caltrain and BART, at the expense of

15 projects and programs that that benefit Plaintiffs and the 80% minority riders of AC Transit. See

16 id. ¶¶ 2-4, 33-36. The Amended Complaint identifies specific components of MTC’s

17 discriminatory pattern and practice and further identifies specific examples of MTC’s unfavorable

18 treatment of Plaintiffs.

19

•

MTC establishes funding criteria that favor projects and programs that

20

benefit the disproportionately white riders of rail providers such as BART

and Caltrain over the disproportionately minority riders of AC Transit. See

21

id. ¶ 61.

22

•

MTC applies its own funding criteria inconsistently, to the disadvantage of

the disproportionately minority riders of AC Transit. See id.

23

•

MTC declines to allocate discretionary funds for the benefit of the

24

disproportionately minority riders of AC Transit in a manner comparable to

its allocation of discretionary funds for the benefit of the disproportionately

25

white riders of Caltrain and BART. See id.

26

•

MTC advocates with state and federal legislatures more aggressively on

behalf of the disproportionately white riders of Caltrain and BART than on

27

behalf of the disproportionately minority riders of AC Transit and exercises

its advocacy efforts before those entities in a manner hostile to AC Transit.

28

See id. ¶¶ 44, 61.

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1

•

MTC has created a two-tiered system for funding capital projects, pursuant

to which it selects costly and cost-ineffective rail projects that benefit white

2

riders but vastly underfunds projects that benefit minority passengers. See

id. ¶ 45.

3

•

MTC imposes far more onerous financial conditions on the funds it grants

4

to the transit system Plaintiffs and other minority riders disproportionately

use, AC Transit, than it does on the transit systems disproportionately used

5

by white riders, Caltrain and BART. See id. ¶¶ 30, 42.

6 MTC departs from both procedural and substantive decision-making norms in its

7 funding practices. While federal law requires MTC to include the public in the transportation

8 planning process, MTC routinely ignores public input and constructive criticism aimed at

9 mitigating the harm of MTC’s funding practices on Plaintiffs and other low-income communities

10 of color. See id. ¶ 55.

11 MTC also routinely departs from substantive transportation planning norms – such

12 as the guiding principle of long-range transportation planning that transportation projects should

13 provide the greatest benefit to the greatest number of people. See id. ¶ 56. Despite the cost-

14 effectiveness of bus over rail (the potential package of new bus projects considered by MTC as a

15 whole in the 2001 RTP was 750% more productive in converting transit funds into new riders

16 than the list of new rail projects), MTC nevertheless consistently channels scarce transportation

17 funds to cost-ineffective rail expansion projects that benefit the disproportionately white riders of

18 Caltrain and BART at the expense of Plaintiffs and other AC Transit riders of color. See id.

19 ¶¶ 56-57.

20 Plaintiffs suffer adverse impacts that take three forms:

21

•

The most appropriate means of measuring subsidization of public transit

22

systems is the metric known as “subsidy per passenger trip” (actual cost of

operations and annualized capital investment for each trip a passenger

23

takes, minus the fare paid). The riders of BART, with a white ridership

double that of AC Transit, received more than double the subsidy per

24

passenger trip of AC Transit riders, and the riders of Caltrain, with a white

ridership triple that of AC Transit, received a subsidy per passenger trip

25

approximately five times that of AC Transit riders. See id. ¶¶ 3, 33-34, 46-

47.

26

•

In addition, Plaintiffs are subjected to a lower quality and quantity of

27

transit service than the disproportionately white riders of Caltrain and

BART. See id. ¶ 65 The Amended Complaint identifies specific examples

28

of this lower quality and quantity of transit service, including service cuts;

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1

fare increases; less reliable and less frequent service; less safe, convenient,

or pleasant waiting conditions; and dirtier vehicles. See id. ¶¶ 65, 67.

2

Service reductions fall harder on Plaintiffs than on the average Caltrain or

BART Rider because a majority of AC Transit riders (61%) are transit-

3

dependent (as compared to 22% of BART and 14% of Caltrain riders) and

have no alternative means of getting to work, school, or other essential

4

locations. Plaintiffs therefore also suffer lost job opportunities and

diminished access to education and health care. See id. ¶ 66.

5

•

Finally, Plaintiffs are adversely impacted because they are branded as

6

second class citizens, not worthy of the transit opportunities and benefits

afforded the disproportionately white riders of Caltrain and BART. See id.

7

¶ 68.

8

All of the adverse impacts on Plaintiffs are caused by MTC and would be

9 redressed by this suit. Because MTC exerts substantial control over the funding received by each

10 transit operator in the Bay Area, see id. ¶¶ 36-42, it exerts a determinative effect on the subsidy

11 per passenger trip received by the riders of each transit system. See id. ¶ 46. And because it is

12 MTC that subjects Plaintiffs to less favorable treatment in its funding practices, it is MTC that

13 causes Plaintiffs to be branded as second class citizens. See id. ¶ 68. Furthermore, as the

14 Amended Complaint now makes clear, the fact that AC Transit delivers transit service to

15 Plaintiffs in no way insulates MTC from accountability. The Amended Complaint alleges that,

16 because of MTC’s funding decisions, AC Transit has reduced the quality and quantity of service

17 previously available to Plaintiffs, implemented fare increases that injured Plaintiffs, and has been

18 unable to implement new projects that would benefit Plaintiffs. See id.¶¶ 43, 48-50, 53.

19

The Amended Complaint also alleges that if MTC ceased its discriminatory

20 practices, it would provide greater funding for AC Transit, which AC would use to improve

21 transit opportunities for Plaintiffs and thus redress the adverse impact of diminished transit

22 opportunities. These improvements include enhanced routes in the service areas where Plaintiffs

23 reside, a free bus pass for low-income students, such as the Plaintiffs’ children, and an affordable

24 fare structure for all other riders, including Plaintiffs. See id. ¶¶ 43, 49-54.

25 III. STANDARD OF REVIEW

26

In ruling on a motion to dismiss for want of standing, a court must “accept all

27 factual allegations of the complaint as true and draw all reasonable inferences in favor of the

28 nonmoving party.” Western Center For Journalism v. Cederquist, 235 F.3d 1153, 1154 (9th Cir.

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1 2000); accord Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); Warth v. Seldin, 422

2 U.S. 490, 501 (1975); see Order at 3-4. In civil rights cases, of course, “complaints are to be

3 liberally construed.” Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir. 1992).

4 IV. SUMMARY OF ARGUMENT

5

Following the Court’s prior order that additional allegations were necessary to

6 plead standing, MTC has brought another motion to dismiss for lack of standing. In response to

7 this motion, we show that the Amended Complaint contains new allegations that address the

8 Court’s previously articulated concerns and that easily satisfy the standard applicable to a motion

9 to dismiss. See Lujan, 504 U.S. at 561 (“on a motion to dismiss [for lack of standing] we

10 ‘presum[e] that general allegations embrace those specific facts that are necessary to support the

11 claim.’”) (citation omitted); see infra Part V-A. For this reason alone, MTC’s motion should be

12 denied.

13

MTC’s current motion, however, is not what it purports to be, i.e., a motion to

14 dismiss for lack of standing. Rather than attempting to demonstrate that the Amended Complaint

15 does not contain legally sufficient allegations to support Plaintiffs’ standing to bring this action,

16 MTC instead challenges the factual bases for those allegations by presenting the Court with an 17 alternate account of the facts.2 MTC’s alternate factual account speaks not to the sufficiency of

18 the standing allegations, but instead attacks the merits of Plaintiffs’ claims of discrimination and

19 labors to prove that MTC has not “in fact” treated Plaintiffs unfavorably or otherwise

20 discriminated against them. The Court should not permit MTC to call into question the merits of

21 and evidentiary support for Plaintiff’s substantive causes of action, under the guise of a motion to

22 dismiss for lack of standing. Plaintiffs, however, do not wish to leave MTC’s claims unanswered.

23 Accordingly, we show that, with respect to the merits of Plaintiffs’ claims, the Amended

24 Complaint clearly states claims for relief and more than satisfies the liberal notice pleading

25 requirements of the Federal Rules of Civil Procedure. See, e.g., Swierkiewicz, 534 U.S. at 510-

26

2 Thus, MTC claims that the allegations are “too conclusory” because they have “no factual underpinning.” Mtn. at p. 3, ll. 5-6. According to MTC, the allegations do not provide

27

“sufficient detail” to provide it with adequate notice of what Plaintiffs are claiming. Id. at p. 3, ll. 6-8. Finally, MTC claims that the allegations “misstate” what the true facts are. Id. at p. 2, ll. 9-

28 11.

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1 11; see infra Part V-B. Moreover, we show that MTC’s factual assertions and inferences are

2 inaccurate and would not, in any event, suffice to defeat the truth of Plaintiffs’ claims of

3 discrimination. MTC’s basic contention that it provided AC Transit with some funds in a few

4 instances is not inconsistent with Plaintiffs’ assertion that MTC declined to provide AC Transit

5 with funds in many other instances, or that it provided BART and Caltrain with comparatively

6 more funds. See infra Part V-C.

7

Finally, we conclude by showing that MTC statute of limitations argument is

8 without merit. See infra Part V-D.

9 V. 10 11 12 13

ARGUMENT
A. Plaintiffs Have Standing To Litigate Their Well-Pleaded Claims Of Discrimination
1. MTC Injures Plaintiffs Because Its Actions Cause Them to Receive Inferior Transit Opportunities and Benefits
Plaintiffs have standing on the basis of the injuries they suffer to their well-being

14 and quality of life, in the form of inferior transit opportunities and benefits. This Court

15 previously found that these injuries constitute injury in fact, and that the causation allegations in

16 the original Complaint approached the requisite showing. Order at 7-8. Plaintiffs have now

17 amended the Complaint to make clear that MTC’s actions at a minimum constitute a “substantial

18 factor motivating” the unequal provision of service to Plaintiffs by AC Transit. Order at 8

19 (quoting Tozzi v. U. S. Department of Health and Human Services, 271 F.3d 301 (D.C. Cir.

20 2001).

21

MTC’s funding practices create an ever-expanding rail system with, by MTC’s

22 own admission, unsustainable and ever-increasing needs for both operating and capital subsidies.

23 In this fashion, MTC limits the pool of funds available to improve bus service through new

24 projects while simultaneously starving the existing bus system of funds for basic operations. See

25 Amended Compl. ¶ 58. Thus, MTC causes harm to AC Transit riders in two ways: cuts and

26 fewer improvements in service. First, because of MTC’s funding decisions, such as decisions to

27 deprive AC Transit of operating funds and/or flexibility, AC Transit has been forced to reduce the

28 quality and quantity of service previously available to Plaintiffs, to implement fare increases that

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1 injured Plaintiffs, or a combination of the two. See id. ¶¶ 43, 49. According to AC Transit’s

2 financial projections, if MTC does not provide AC Transit with additional funding, AC Transit

3 will have to make further service cuts. See id. ¶ 53. Second, because of MTC’s funding

4 decisions, including, inter alia, its refusal to allocate AC Transit any of the $55 million in

5 “strategic expansion” CMAQ and STP funds that it recently allocated (without any public process

6 or input), AC Transit has been unable to provide Plaintiffs with new service that AC Transit has

7 planned to implement, as described in its “Strategic Vision,” and that would benefit Plaintiffs in

8 particular. See id. 48-49, 50-53. This of course is juxtaposed against the ever expanding rail

9 service enjoyed by the disproportionately white riders of Caltrain and BART. See id. ¶¶ 3-4.

10

Just as AC Transit cannot provide service if it lacks the funds to do so, the amount

11 of service it provides would increase if it had additional funds, and so the allegations establish

12 redressability. See id. ¶ 43; Order at 11 (“Plaintiffs’ argument that more money flowing to AC

13 Transit is likely to benefit its inner city patrons is plausible.”). MTC now appears to concede the

14 point. Defs. Br. at 23 (“more money from one source could translate into more and/or better

15 service to Plaintiffs”). Moreover, as noted above, AC Transit has formally adopted a “Strategic

16 Vision” Plan and is thus committed to implementing the improvements set forth therein if MTC

17 allocates it sufficient funding to do so. See id. ¶ 50. These planned improvements seek to

18 improve service not just for the entire AC Transit network, but for the very areas where each of

19 the individual Plaintiffs lives. See id. ¶¶ 48, 50. The Strategic Vision plan also seeks to institute

20 a free bus pass for low-income students, such as the children of the individual Plaintiffs, and an

21 affordable overall fare structure for all passengers, including Plaintiffs. See id. ¶ 50. None of the

22 ten bus routes slated for enhancements is a Transbay route. See id. Any service improvements

23 will therefore benefit not only all AC Transit riders, but minority transit dependent riders in

24 particular, consistent with AC Transit procedures in place to ensure that any changes it institutes

25 with respect to service or fares benefit minority riders to at least the same extent as other riders.

26 See id. ¶ 52.

27

Thus, the Amended Complaint sufficiently alleges “a substantial probability that

28 the relief [Plaintiffs] seek will remedy the injury.” See Order at 11. It bears emphasis that even

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1 in cases involving the actions of a third party, plaintiffs need only establish that it is “substantially

2 likely” that the relief sought would redress the injury. Compet. Enterp. Inst. v. NHTSA, 901 F.2d

3 107, 117 (D.C. Cir. 1990) (where third party involved, plaintiffs had standing because relief in

4 case was “substantially likely to redress” the injury; no need for plaintiffs to “guarantee” injury

5 would be redressed).

6

In order for redressability to be lacking in this case, one would have to speculate

7 (contrary not only to logic, but also to the allegations of the Amended Complaint that set forth

8 AC Transit’s plan for spending additional funding) that AC Transit would decline to spend any

9 portion of additional funds from MTC on service improvements or fare reductions to benefit

10 Plaintiffs and the 80% of its riders who are people of color. “Nothing in [the Supreme Court’s]

11 prior cases requires a party seeking to invoke federal jurisdiction to negate the kind of speculative

12 and hypothetical possibilities suggested in order to demonstrate the likely effectiveness of judicial

13 relief.” Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 78 (1978).

14

2. Plaintiffs’ First Amended Complaint Alleges Direct Economic Injury

15

Direct economic injury is a sufficient basis for standing. See, e.g., Sierra Club v.

16 Morton, 405 U.S. 727, 733 (1972); see Order at 6. Plaintiffs allege that MTC’s discriminatory

17 funding practices cause Plaintiffs and members of the proposed plaintiff class to receive a lower

18 subsidy per passenger trip than is received by the disproportionately white riders of BART and

19 Caltrain. Amended Compl. ¶ 64. Plaintiffs maintain that this constitutes a direct economic injury

20 inflicted by MTC.

21

In its September 19th Order, the Court ruled that Plaintiffs’ original Complaint

22 was insufficient because it failed to allege that the “low subsidy translated into personal economic

23 harm such as excessive fares or reduced property values.” Order at 6. Plaintiffs’ Amended

24 Complaint directly addresses this insufficiency by including specific allegations that MTC’s

25 discriminatory policies and practices have “repeatedly forced AC Transit to increase fares

26 Plaintiffs and Plaintiff Class members pay for bus service.” Id. ¶ 49. Because the Plaintiffs and

27 many members of the Proposed Plaintiff Class are transit-dependent bus riders, they have no

28 choice but to pay the higher fares that MTC forces on them. Id. In addition, the Amended

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1 Complaint alleges that Defendant MTC has, as a result of its discriminatory policies and

2 practices, failed to adequately fund a free bus pass program that would economically benefit

3 members of the Proposed Plaintiff Class. Id. ¶ 57. These both constitute direct economic injuries

4 affecting Plaintiffs’ “pocketbooks.” See Order at 6.

5

In addition, the Amended Complaint alleges that these pocketbook injuries are

6 caused by MTC’s discriminatory practices, and would be redressed by an order requiring

7 cessation of the illegal conduct. Amended Compl. ¶ 49 (“Because Defendant MTC has engaged,

8 and continues to engage, in its discriminatory . . . decisionmaking practices, . . . AC Transit has

9 repeatedly been forced to . . . implement fare increases that injure Plaintiffs and Plaintiff Class

10 members”); id. ¶ 52 (“If Defendant MTC ceased its discriminatory . . . decisionmaking practices,

11 AC Transit would provide improved services and/or reduced fares that would directly benefit

12 Plaintiffs”). These general allegations suffice to establish standing at this early stage of the

13 litigation. See Lujan, 504 U.S. at 561; Order at 4.

14

3. MTC’s Intentional Discrimination Inflicts Direct Stigmatic Injury On

Plaintiffs 15

16

In its previous Order, the Court noted that the discrimination alleged in the original

17 Complaint was not so “obviously demeaning” or “immediately apparent as to automatically

18 confer a badge of inferiority upon people of color who use AC Transit.” Order at 5-6.

19

The allegations of discrimination in the Amended Complaint are now sufficient to

20 plead such stigmatic injury. It alleges that MTC has deliberately discriminated against the

21 Plaintiffs and the proposed class of minority bus riders by systematically channeling resources

22 away from projects that benefit them in favor of projects that benefit non-minorities. See

23 Amended Compl. ¶¶ 1-6, 36, 48-49. The Amended Complaint also alleges that MTC has

24 explicitly created a two-tiered approach to funding transit projects – selecting projects that benefit

25 whites and underfunding projects that would benefit minorities – and that its intentionally

26 discriminatory policy and practice disadvantage and stigmatize transit-dependent minorities just

27 as would an overt racial classification. See id. ¶¶ 45, 63. The disproportionately white riders of

28 Caltrain and BART are treated more favorably than the 80 % minority riders of AC Transit. See

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1 id. ¶¶ 1-6, 36, 45, 48-49. MTC’s open favoritism for the disproportionately white rail riders

2 stigmatizes Plaintiffs and the proposed class of minority bus riders as second class citizens. See

3 id.¶ 68 (MTC’s discriminatory policies and practices “sends the message that . . . they are not

4 equal participants in the community and worth less than their white counterparts on Caltrain and

5 BART.”).

6

Thus, the discrimination alleged by the Amended Complaint is so “obviously

7 demeaning” and “immediately apparent” as to constitute stigmatic injury. See Order at 6. It

8 should also be noted that the Northern California ACLU has submitted an amicus brief arguing

9 that claims of stigmatic injury are not limited to Equal Protection classification claims involving

10 facial racial classifications. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 373-74 (1886)

11 (administration of a facially neutral San Francisco city ordinance with an “evil eye and an uneven

12 hand” to the detriment of Chinese laundrymen based upon “hostility to the race and nationality to

13 which [they] belong” was unconstitutional).

14

B. Plaintiffs’ Complaint Easily Satisfies Notice Pleading Requirements

15

Contrary to MTC’s assertion that Plaintiffs’ general factual allegations are too

16 “conclusory,” the allegations contained in the Amended Complaint easily satisfy notice pleading

17 requirements. Both the Supreme Court and the Ninth Circuit have repeatedly made clear that

18 discrimination plaintiffs need only provide, consistent with Federal Rule of Civil Procedure 8(a),

19 “a short and plain statement of the claim showing that the pleader is entitled to relief,” and that

20 discrimination plaintiffs need not allege in a complaint the specific elements of a prima facie case

21 of discrimination. Swierkiewicz v. Sorema, 534 U.S. at 510-11; Kwai Fun Wong v. United States,

22 373 F.3d 952, 968-69 (9th Cir. 2004); McGary v. City of Portland, 386 F.3d 1259, 1262 (9th Cir.

23 2004); Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061-62 (9th Cir. 2004); Gilligan v. Jamco

24 Dev. Corp., 108 F.3d 246, 249 (9th Cir. 1997).

25

A liberal pleading standard governs discrimination cases, not only because that

26 standard is required by the Federal Rules, Swierkiewicz, 534 U.S. at 513, but also because “the

27 prima facie case is ‘an evidentiary standard, not a pleading requirement,’ and often requires

28 discovery to fully adduce.” McGary, 386 F.3d at 1262. As the Supreme Court explained,

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1 “[b]efore discovery has unearthed relevant facts and evidence, it may be difficult to define the

2 [evidence required] in a particular case. . . . This simplified notice pleading standard relies on

3 liberal discovery rules and summary judgment motions to define disputed facts and issues and to

4 dispose of unmeritorious claims.” Swierkiewicz, 534 U.S. at 512. To filter out claims at the

5 pleading stage, before discovery, would present a “daunting hurdle” in discrimination cases

6 because, in many instances, evidence in support of plaintiffs’ claims lies within the control of the

7 defendant. Powell, 189 F.3d at 396; see also Edwards, 356 F.3d at 1061 (“discovery [is] often

8 necessary to uncover a trail of evidence regarding the defendant’s intent in undertaking allegedly

9 discriminatory action”); Gilligan, 108 F.3d at 250 (requiring detailed allegations in discrimination

10 cases would force “plaintiffs to plead facts they may have no way of knowing”).

11

MTC cannot seriously argue that the Amended Complaint is too conclusory to

12 effectively provide it with notice of Plaintiffs’ claims because MTC obviously understands the

13 claims quite well – well enough to contest them. See Defs. Br. at 18-19. MTC’s argument is not

14 so much that Plaintiffs’ allegations are conclusory, but that they are factually incorrect, an

15 argument that plainly does not support a motion to dismiss. See, e.g., Conely v. Gibson, 455 U.S.

16 41, 45-46 (1957).

17

Like the plaintiffs in Powell, Plaintiffs raise a claim of unequal funding. The

18 Amended Complaint alleges that MTC treats AC Transit, a transit system 80% of whose riders

19 are people of color, less favorably in its funding decisions than it treats Caltrain and BART,

20 transit systems disproportionately used by white riders, by providing AC Transit with less

21 funding; that these disparities in funding are caused by MTC’s discriminatory practices; and that

22 these funding disparities limit the transit opportunities and benefits of Plaintiffs and other

23 minority transit riders. See Powell, 189 F.3d at 395 (plaintiffs stated claim of unequal funding);

24 see also Order at 4 (motion to dismiss cannot be granted unless “it appears beyond doubt that the

25 plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”)

26 (citation omitted).

27

While Plaintiffs, like the Powell plaintiffs, have satisfied the requirement of notice

28 pleading, and even though no more is required, see Swierkiewicz, 534 U.S. at 510-11, the

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1 Amended Complaint goes further and identifies specific examples of its general factual

2 allegations. These specific allegations support a prima facie case of federal law intentional

3 discrimination and state law disparate impact discrimination.

4

The Amended Complaint places MTC on fair notice of Plaintiffs’ intentional

5 discrimination claims. As the Court previously found, the original Complaint sufficiently alleged

6 intentional discrimination in support of the federal claims. Order at 14. Not only does the

7 Amended Complaint allege that MTC’s actions have the purpose of discriminating against them

8 on the basis of racial and national origin animus, see Amended Compl. ¶ 71, 74, it also contains

9 specific factual allegations that support an inference of prohibited animus, such as the adverse

10 impact on Plaintiffs, the historical background of MTC’s funding decisions, and MTC’s

11 substantive and procedural departures from normal decision-making protocols. Compare id. ¶¶ 3,

12 30-34, 45, 46-47, 61, 65-68 with Village of Arlington Heights v. Metropolitan Housing

13 Development, 429 U.S. 252, 267 (1977) (discussing factors that support inference of

14 discriminatory intent).

15

Similarly, the Amended Complaint also places MTC on fair notice of Plaintiffs’

16 disparate impact claims. A prima facie case of disparate impact discrimination requires a plaintiff

17 to identify the defendant’s allegedly harm-causing practices, to show that the practices have an

18 effect on plaintiffs that is disproportional and adverse, and to establish causation. See, e.g., 19 Rose v. Wells Fargo & Co., 902 F.2d 1417, 1424 (9th Cir. 1990).3 The Amended Complaint

20 identifies some of the specific practices in which MTC engages that Plaintiffs contend harm them.

21 See supra at 8-9; see also Powell, 189 F.3d at 397 (“plaintiffs did not need to identify in the

22 complaint a particular portion of [defendant’s practices] as objectionable to plead a disparate

23 impact claim”). As set forth above, the Complaint also alleges that (1) the impact on Plaintiffs

24 and other minorities is disproportional because AC Transit serves a population that is 80%

25

3 Plaintiffs disparate impact claim arises under Cal. Gov. Code §11135 and its implementing regulation. Where, as here, the federal and state laws are parallel, compare 22 C.C.R. 98101(i)(1)

26

(state disparate impact regulation), with 28 C.F.R. 42.104(b)(2) (Title VI disparate impact regulations), 49 C.F.R. 21.5(b)(2) (same), federal precedent is persuasive with respect to the state

27

law. See Guz v. Bechtel Natl’l, Inc., 24 Cal.4th 317, 354 (2000) (applying Title VII of Civil Rights Act to California Fair Employment and Housing Act); Larry P. By Lucille v. Riles, 793

28 F.2d 969, 982 n.9 (9th Cir. 1984) (applying Title VII disparate impact caselaw to Title VI).

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1 minority while Caltrain and BART serve populations that are disproportionately white; (2) the

2 impacts on Plaintiffs are adverse because Plaintiffs receive a lower subsidy per passenger trip,

3 and inferior transit opportunities and benefits than the disproportionately white riders of Caltrain

4 and BART, and are stigmatized as second class citizens not worthy of treatment by MTC

5 comparable to that extended to the disproportionately white riders of Caltrain and BART; and

6 (3) these impacts are caused by MTC. See supra at 7-9.

7

C. MTC’s Factual Assertions Do Not Support A Motion To Dismiss For Lack Of

Standing 8

9

As set forth above, Plaintiffs in this unequal funding case clearly have standing to

10 challenge MTC’s discriminatory treatment of them and moreover have easily satisfied the liberal

11 pleading standards applicable by stating claims for relief. As we show below, each of MTC’s

12 factual assertions bears directly on the merits of a plaintiff’s well-pleaded claims and is, in any

13 event, untrue. If a defendant could attack the merits of plaintiffs’ claims at the pleading stage, as

14 MTC seeks to do, the liberal pleading standards applicable to discrimination cases would have no

15 meaning. Neither the doctrine of standing nor the device of judicial notice was intended as a

16 means of circumventing liberal pleading standards, discovery, and the Federal Rules of Evidence.

17

Going beyond the requirements of notice pleading, the Amended Complaint

18 includes a number of specific examples—by no means exhaustive of all examples—of MTC’s

19 discriminatory policies and practices. MTC makes no effort to contest the truth of the general

20 allegations, which are presumed to embrace those specific facts necessary to support the claim.

21 Lujan, 504 U.S. at 561; Order at 4. Rather, its motion rests on the logical fallacy that it may 22 ignore the general allegations if it can refute some of the specific examples.4

23

MTC channels funds to projects and programs that benefit the disproportionately

24 white riders of Caltrain and BART, at the expense of the 80% minority riders of AC Transit.

25 Amended Compl. ¶3. Rail riders reap these disproportionate benefits because MTC endorses

26 their projects through its RTP and its RTEP,5 channeling large sum of funds to new expansion

27

4 Plaintiffs’ objections to MTC’s request for judicial notice (“Pltfs’ Objections”) are set forth in a separate pleading filed concurrently with this opposition brief.

28 5 MTC not only puts Caltrain and BART expansions at the top of its list of priority transit

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1 projects, while taking actions to shore up existing service without repeated cuts and fare

2 increases, id. ¶58, in contrast to how MTC treats AC Transit riders. As a direct result, Caltrain

3 and BART riders enjoy a higher quality and quantity of transit service than do riders of AC

4 Transit. Id. ¶4.

5

These rail expansions serve the needs of people who are not “transit-dependent.”

6 Id. ¶63. AC Transit aspires to provide the same world-class transit service to its minority, transit-

7 dependent riders, as set forth in a detailed Strategic Vision, Exh. J at 30-37, which it developed to

8 “demonstrate how—given adequate funding—we can achieve this goal.” Id. at 31 (emphasis

9 added). Implementation of AC Transit’s plan would “provide fast, frequent, reliable service on a

10 wide variety of routes with attractive vehicles and an easy-to-use fare structure at affordable

11 levels.” Id.; Amended Compl. ¶50. The plan also contemplates a free annual bus pass for low-

12 income students. Exh. J at 35. Phase One of the plan would provide “comprehensive

13 enhancements throughout the [AC Transit] system,” with buses operating every 15 minutes, and 14 every 7.5 minutes on the busiest corridors.6 Id. at 31.

15

MTC’s discriminatory policies and practices leave AC Transit unable to

16 implement its plan to provide “truly world-class service,” id., and instead force AC Transit

17 instead to cut service and to raise fares in order to close persistent gaps in its operating budget.

18 An order halting these policies and practices would enable AC Transit to improve the vital

19 services on which Plaintiffs are dependent. See Amended Compl. ¶¶ 49-54.

20

MTC’s neglect of its “Lifeline Transportation Network” program is an example of

21 one of MTC’s discriminatory practices: a two-tiered funding system, by which it prioritizes the

22

expansion projects, the Regional Transit Expansion Program (“RTEP,” adopted by Res. 3434

23 [Exh. A at 1-24]), but also includes those projects in its RTP, meaning that it has identified full

funding for them. Exh. A at 28. Thus, in the 2001 RTP, MTC selected BART and Caltrain

24 expansion projects as six of its top seven projects in the RTEP, and planned to include all six as

fully-funded with no “shortfall” in the 2001 RTP. Exh. A at 22. These six projects alone

25 accounted for $7.2 billion or nearly 70% of the $10.5 billion RTEP package. Id; see also Pltfs’

Objections at 9.

26 6 The Strategic Vision also identifies ten bus routes for “enhanced” bus service, not one of them a

27

Transbay route. Exh. J at 31, 33. Nine of those ten routes serve Oakland, where Plaintiffs Darensburg and Hain live. One of those ten routes serves Richmond, where Plaintiff Martinez

28 lives. See Pltfs’ Objections at 6-10.

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1 needs of disproportionately non-minority rail riders over transit-dependent minority bus riders.

2 Id. ¶45. MTC selects for inclusion in its list of priority transit improvement and expansion

3 projects, the RTEP, those rail expansion projects that benefit non-minority riders, while it 4 relegates transit-dependent minorities to “Lifeline.”7 Completed in 2001, MTC’s “Lifeline” study

5 identified numerous gaps in the transit safety-net: inadequate frequency and inadequate hours of

6 service on the routes on which transit-dependent riders relied. It identified gaps in fully 53 of the 7 67 Lifeline routes served by AC Transit—nearly 80% of its safety-net service.8 Thus, the link

8 between Plaintiffs’ claims and MTC’s failure to implement and fund the Lifeline program is

9 hardly “attenuated,” as MTC asserts. Defs. Br. at 17.

10

Overall, MTC found that “an additional 1.55 million service hours” would be

11 needed to fill the safety-net service gaps throughout the region, which would translate into $109 12 million a year if fixed route service were implemented.9 MTC’s motion, Docket No. 35 (filed 13 Oct. 28), at 4.10 Over the 25-year life of the RTP, $109 million a year comes to $2.725 billion—

14 yet MTC admits that (after a four-year delay) it only put $216 million toward Lifeline in the 2005

15 RTP. Defs. Br. at 4 (citing 2005 RTP at 52-55). Contrary to MTC’s assertion, Defs. Br. at 17,

16 Plaintiffs’ allegation of a shortfall of “well over a billion dollars,” Amended Compl. ¶45, is not

17 only true, but greatly understated.

18

Indeed, MTC has failed to carry through even on the $216 million it promised in

19 7 MTC asserts that it included two AC Transit projects in the 2001 RTEP, Defs. Br. at 17, but
20 neglects to point out that those projects had a funding shortfall of $63 million. Exh. A at 22. Its statement is overstated in other respects as well. See Pltfs’ Objections at 7-9.

21 8 Of 67 Lifeline routes that AC ran in 2001, MTC found that only 14 “fully meet[] Lifeline

22

objectives” in terms of frequency and service hours. LTN at App. D; see also table at p. 23. MTC does not attach its Lifeline study as an exhibit to its voluminous Request for Judicial

23

Notice, but gives its web address instead. Defs. Br. at 4, n.2. Significantly, MTC’s definition of adequate Lifeline service falls far short of AC Transit’s definition of “world-class” service. See

24 Pltfs’ Objections at 12, n.13. 9 MTC’s Lifeline study asserted that “[a]lternatives to fixed route service can and should be

25 pursued where fixed route does not appear cost effective,” LTN at 27, giving as an example of an

alternative “taxi vouchers … with an average cost per trip ranging from $15-$50.” Id. at 27-8. In

26 AC Transit’s densely-populated urban service area, fixed route service costs only about $3.99 per

trip. MTC, “Statistical Summary of Bay Area Transit Operators Fiscal Years 1998-99 Through

27 2002-03” at 4 (available at http://mtc.ca.gov/library/statsum/statsum.htm).

28 10 MTC deleted this admission from the amended brief it filed on Nov. 1 (Doc. No. 45).

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1 the 2005 RTP. Four years later, MTC has not provided any Lifeline funding to fill any of the

2 gaps in AC Transit’s safety-net service that MTC itself identified in 2001. See Defs. Br. at 17

3 (“there was no commitment on behalf of MTC to provide the funds”). Instead, AC Transit now

4 has even more gaps in safety-net service: As MTC itself admits, AC Transit cut service by 14% in 5 2003 alone. Defs. Br. at 18 (citing Exh. J at 12).11

6

When AC Transit cuts service and raises fares, it is often complying with

7 conditions that MTC sets. One example is MTC’s requirement that AC Transit cut service and

8 increase fares in order to receive the “preventive maintenance” funding that it needs to help close 9 repeated shortfalls in its operating budget.12 In 1998, Congress expressly authorized the use of

10 §5307 funds not only for capital projects, but also for preventive maintenance, an essential cost of

11 operating transit. 49 U.S.C. § 5302(a)(1)(E). But MTC—far from “creatively enabl[ing]” AC

12 Transit to access these essential funds, Defs. Br. at 6—has instead imposed daunting conditions

13 on AC Transit’s congressionally-authorized access to them. MTC, however, fails to inform the

14 Court of these restrictive conditions. For example, MTC refuses to program preventive

15 maintenance flexibility to an operator unless that operator can demonstrate that it faced an

16 operating shortfall after implementing “all reasonable cost control and revenue generation

17 strategies.” Exh. D at 26 (Res. 3688, 2005). MTC first imposed this requirement in 2002, when

18 it decreed that an operator seeking to use §5307 funds for preventive maintenance must show “a

19 significant service reduction beyond service adjustments already planned as part of the FY 2003-

20 04 budget process.” Exh. D at 63 (Res. 3580). Starved for operating funding, see Amended

21 Compl. ¶ 58, AC Transit is left no choice but to meet MTC’s conditions. It cut service (by 14% 22 in 2003 alone, Exh. J at 12), and raised fares (as recently as September),13 all to the detriment of

23 Plaintiffs. Had MTC allowed AC Transit ready access to preventive maintenance funds, as

24 permitted by federal law, some of these service cuts and fare increases would have been averted.

25

11 MTC states that AC Transit’s service cuts are due to a poor economy, Defs. Br. at 18, but fails to note or explain that BART and Caltrain, which operate in the same economy, have not had to

26 cut service and raise fares year by year. 12 MTC has imposed other draconian restrictions, as well. See Pltfs’ Objections at 12-16.

27 13 On September 6, 2005, local AC Transit bus fares for adults rose by 17%, the third increase in

28 six years. http://www.actransit.org/news/articledetail.wu?articleid=5c33f006.

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1 Moreover, MTC has now imposed an absolute cap on AC Transit’s future receipt of those funds,

2 limiting it to two of the next 12 years, regardless of the severity of its operating shortfalls.

3 Amended Compl. ¶ 43; Exh. D at 26.

4

MTC’s preventive maintenance policy is but one example of its discriminatory

5 refusal to allocate discretionary funds for the benefit of the disproportionately minority riders of

6 AC Transit. That practice is also illustrated by three other examples in the Amended Complaint:

7

• MTC ranked a bus project, known as the “Intra West Contra Costa”

project, as the most cost-effective project considered for the 2001 RTP, yet

8

failed to fund it. Amended Compl. ¶48.14 At a total cost (operating cost

plus amortized capital cost) of only $0.75 per new rider, that project would

9

have provided service within (“intra”) West Costa Contra County, on the I-

80 “Corridor.” Exh. L at 9.

10

Asserting that MTC funded another operator, WestCAT, to provide that

11

service, Defs. Br. at 8, 16, MTC points to a different project, one that

provided service between West Contra Costa (Richmond and environs) and

12

Central Contra Costa (Martinez), on a completely different “Corridor”

(“SR [state route] 4,” not Interstate 80). Exh. I at 6, H at 15. That project,

13

moreover, was estimated to cost between $1.25 and $1.60 in operating

costs alone, Exhs. I at 6, 99—more than twice the total cost (including

14

annualized capital cost) of the $0.75 per new rider intra West Contra Costa

project cited in the Amended Complaint. Amended Compl. at ¶ 48, 57.15

15

• MTC inadequately funded a free bus pass for low-income students.

16

Amended Compl. ¶57. MTC responds with Exh. M, which reflects that it

provided $1 million per year for two years for a pilot student bus pass

17

program. MTC does not mention, however, that the success of the

program, according to Alameda and Contra Costa County Supervisors,

18

required MTC to provide $3.75 million a year for three years. Pltfs’

Objections, Exh. B. 19

As AC Transit explains in its Short Range Transit Plan, it “was unable to

20

mitigate the revenue loss associated with the [student bus pass] program

21 14 MTC erroneously asserts that “[t]he ministers’ Letter does not request funding for any

particular service”, Defs. Br. at 1, an error resulting from its selective inclusion of only part of the

22 correspondence. To the contrary, in response to the letter of MTC Chair Sharon Brown (which

MTC does include, Exh. G at 6), the ministers wrote that “MTC should fund the ‘Intra West

23 Contra Costa County Rapid Bus’ proposal, the most cost effective project in MTC’s ‘Blueprint.’”

Pltfs’ Objections, Exh. A (letter of Apr. 30, 2001).

24 15 MTC asserts that in “AC Transit’s own requests for funds, there is no mention of the Richmond

25

bus project extension.” Defs. Br. at 16. In support, it cites Exh. A at 108-16. This mixes apples and oranges, since these pages of Exh. A constitute AC Transit’s request for the inclusion of

26

projects in the RTEP, a long-range list of priority expansion projects. See Exh. A at 28. By contrast, the WestCAT documents in Exh. H are a response to MTC’s “call for projects” in regard

27

to an immediate State funding opportunity. Exh. H at 4. MTC does not include in its exhibits either its “call for projects” or AC Transit’s response to that call for projects. See Pltfs’

28 Objections at 16-19.

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1

through grants and regional subsidies and was forced to eliminate it due to

budget deficits.” Exh. J at 22. The requirement of additional grants and

2

subsidies was imposed by MTC, which not only refused to fund the

program adequately, but also required AC Transit to come up with a “50/50

3

local match,” with “AC Transit providing a minimum of $400,000 per year

from its own district funds.” Exh. M at 1. As a result of inadequate

4

funding by MTC, the pilot project lasted only a year.

5

•

MTC failed to allocate to AC Transit any of a $100-plus million “windfall”

in federal STP and CMAQ funds last Spring. Amended Compl. ¶48.

6

MTC’s response is that these “funds were directed to several categories of

7

projects,” and that AC Transit did not have any projects that met the

criteria in these categories. Defs. Br. at 17 (emphasis added). In fact, it

8

was MTC in the exercise of its discretion that directed the money to those

particular categories, as its documents make clear. See, e.g., Exh. C at 1

9

(MTC “staff developed a program” for allocating these funds); id. at 3

(“MTC has developed policies and procedures to be used in the selection of

10

projects to be funded with STP and CMAQ” funds).16 Thus, this instance

also illustrates MTC’s discriminatory practice of establishing funding

11

criteria that favor projects and programs that benefit rail riders over bus

riders. Amended Compl. ¶61.

12

13

Finally, Plaintiffs allege, as an example of MTC’s disparate lobbying practices,

14 that MTC successfully urged Congress to change the criteria for allocating funds under JARC

15 (“Job Access and Reverse Commute”), a federal Welfare-to-Work transit program. Amended

16 Compl. ¶39. Previously, AC Transit had received a significant share of JARC funds, based on the

17 recognized transportation needs of AC Transit’s low-income riders. As a result of the change to a

18 formula basis (lobbied for by MTC), AC Transit has now lost several million dollars a year of its

19 prior appropriations. Id. MTC could have lobbied Congress to benefit transit-dependent AC

20 Transit riders; instead, it chose to lobby to injure them. MTC does not dispute the facts, instead

21 professing modesty about the effectiveness of its lobbying, Defs. Br. at 16, although its own

22 documents paint a different picture. In fact, MTC wrote its plan to lobby Congress for this

23 precise change into its RTP earlier this year. 2005 RTP at 55 (emphasis added). It is not enough

24 for MTC to claim that Congress, not MTC, makes federal law. Plaintiffs allege that MTC’s voice

25 carries “significant influence” with state and federal legislatures, Amended Compl. ¶44, and that

26 16 Even with respect to the purported federal constraint that the money “be obligated in FY 2004-

27

05,” MTC had flexibility. Its own documents state that this requirement was only “to the extent possible,” and also acknowledge MTC’s ability to shift other funds around “as a bridge.” Exh. C

28 at 1.

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1 it chooses to wield that influence to the advantage of disproportionately white rail riders, at the

2 expense of transit-dependent bus riders of color. Id. ¶61. Its role in the JARC amendment is a

3 clear example of this pattern.

4

In sum, the factual assertions made by MTC do not support its motion to dismiss

5 for lack of standing.

6

D. Plaintiffs’ Claims Are Not Barred By Statutes Of Limitations Because They

Seek Injunctive Relief From Present And Ongoing Injury 7

8

MTC appears to argue that Plaintiffs’ claims are barred by applicable statutes of

9 limitations. This is incorrect. Plaintiffs are not seeking retrospective, damages relief. Rather,

10 Plaintiffs have brought an equitable challenge to MTC’s present and ongoing policy of

11 discriminatory funding. Amended Compl. ¶¶ 1-6, 70-78. Plaintiffs seek an injunction from this

12 Court that forces MTC to cease and desist from continuing to engage in the challenged

13 misconduct. See Pltfs’ Prayer For Relief. In part, Plaintiffs seek this relief based upon a theory

14 of intentional discrimination under the Equal Protection Clause. Proving the existence of

15 discriminatory intent requires “a sensitive inquiry into such circumstantial and direct evidence of

16 intent as may be available.” Arlington Heights 429 U.S. at 266.

17

A challenged practice or policy’s “historical background,” along with historical

18 evidence regarding “[d]epartures from the normal procedural sequence,” are key sources of

19 evidence in an intentional discrimination case. Id. at 267-68. Plaintiffs have included extensive

20 historical information in their Amended Complaint in order to support their claim for intentional

21 discrimination. Id. ¶¶ 40-43, 49-69. There is no requirement that such historical information be

22 restricted to the period covered by the applicable statute of limitations. In fact the exact opposite

23 is true as recognized by the case cited by Defendant. See Cholla Ready Mix, Inc. v. Civish,

24 382 F.3d 969, 975 (9th Cir. 2004) (acts occurring outside of statutory period “may be relevant

25 background material in support of its timely claim.”); cf. Order at 13 (“[P]ast wrongs are
26 probative of whether there is a real and immediate threat of repeated injury”).17
27 17 Evidence of discrimination prior to the liability period is often probative of liability itself, particularly in pattern or practice cases in which systemic discrimination is alleged. See, e.g.,
28 Bazemore v. Friday, 478 U.S. 385 (1986) (finding evidence that employer had engaged in

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
488580.5

Richard Marcantonio Guillermo Mayer Elisabeth Voigt PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105 Telephone: (415) 431-7430 Facsimile: (415) 431-1048
Attorneys for Plaintiffs Sylvia Darensburg, Virginia Martinez, Vivian Hain, and the Proposed Class
Adrienne Bloch COMMUNITIES FOR A BETTER ENVIRONMENT 1440 Broadway, Suite 701 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438
Attorneys for Plaintiff Communities for a Better Environment

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PLAINTIFFS’ OPPOSITION TO DEFENDANT’S MOTION TO DISMISS

CASE NO. C-05-1597

 
 Case3:05-cv-01597-EDL Document175 Filed04/01/08 Page1 of 38

1 BILL LANN LEE (State Bar No. 108452)
2 blee@lewisfeinberg.com MARGARET HASSELMAN
3 (State Bar No. 228529) mhasselman@lewisfeinberg.com
4 LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.
5 1330 Broadway, Suite 1800 Telephone: (510) 839-6824
6 Facsimile: (510) 839-7839
7 Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Class; and Plaintiff
8 Communities for a Better Environment
9

RICHARD A. MARCANTONIO (State Bar No. 139619) rmarcantonio@publicadvocates.org GUILLERMO MAYER (State Bar No. 235776) gmayer@publicadvocates.org ELISABETH VOIGT (State Bar No. 234935) evoigt@publicadvocates.org ANGELICA K. JONGCO (State Bar No. 244374) ajongco@publicadvocates.org PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105 Telephone: (415) 431-7430 Facsimile: (415) 431-1048

10

Attorneys for Plaintiffs Sylvia Darensburg,

Vivian Hain, and the Class

11

[Additional Plaintiffs’ counsel listed at end]

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

15 SYLVIA DARENSBURG, and VIVIAN
16 HAIN, individuals on behalf of themselves and all others similarly situated;
17 AMALGAMATED TRANSIT UNION, LOCAL 192; and COMMUNITIES FOR A
18 BETTER ENVIRONMENT,

19

Plaintiffs,

Case No. C-05-1597-EDL
PLAINTIFFS’ NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION

20

v.

METROPOLITAN TRANSPORTATION

21 COMMISSION,

22

Defendant.

Date:

June 24, 2008

Time:

9:00 a.m.

Judge: Hon. Elizabeth Laporte

Trial Date: Oct. 1, 2008

23

24

25

26

27

28
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1

NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION

2 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD, NOTICE IS
3 HEREBY GIVEN THAT on June 24, 2008, at 9 a.m., in Courtroom E, 450 Golden Gate
4 Avenue, 15th Floor, San Francisco, California, Plaintiffs will and hereby do move the Court
5 pursuant to Fed. R. Civ. P. 56 for summary adjudication on the following issue: that they have
6 established a prima facie case of disparate impact discrimination, in violation of California
7 Government Code Section 11135 and its implementing regulations, with regard to MTC’s
8 practice of funding transit capital shortfalls, but not operating shortfalls, in its Regional
9 Transportation Plans. Plaintiffs bring this motion on the ground that they are entitled to summary
10 adjudication as a matter of law. See Robi v. Five Platters, Inc., 918 F.2d 1439, 1441-42 (9th Cir.
11 1990) (motion pursuant to Rule 56 is proper vehicle to obtain summary adjudication of discrete
12 legal issue). This motion is based upon this Notice of Motion and Motion, this Memorandum of
13 Points and Authorities, the accompanying declarations of Thomas A. Rubin, Richard Berk,
14 Thomas W. Sanchez, and Richard A. Marcantonio, the complete files and records in this action,
15 and on such other argument or evidence as may be presented at or before the time of hearing.
16

17

18

19

20

21

22

23

24

25

26

27

28

PLTFS’ MPA ISO MOTION FOR

1

SUMMARY ADJUDICATION

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1 Dated: April 1, 2008
2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLTFS’ MPA ISO MOTION FOR SUMMARY ADJUDICATION
Case No. C-05-1597-EDL

LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.

By:

/s/

Bill Lann Lee

Bill Lann Lee Margaret Hasselman LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 95612-2519 Telephone: (510) 839-6824 Facsimile: (510) 839-7839

Kelly Dermody Daniel M. Hutchinson LEIFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West 275 Battery Street, Suite 3000 San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Class; and Plaintiff Communities for a Better Environment

Peter D. Nussbaum Daniel T. Purtell Linda Lye ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064

Attorneys for Plaintiff Amalgamated Transit Union Local 192

2

Case3:05-cv-01597-EDL Document175 Filed04/01/08 Page4 of 38

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLTFS’ MPA ISO MOTION FOR SUMMARY ADJUDICATION
Case No. C-05-1597-EDL

Richard A. Marcantonio Guillermo Mayer Elisabeth Voigt Angelica K. Jongco PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105 Telephone: (415) 431-7430 Facsimile: (415) 431-1048 Grant P. Fondo Melina Patterson Jessica Valenzuela Santamaria Heather Dunn Navarro COOLEY GODWARD KRONISH LLP 5 Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 Telephone: (650) 843-5000 Facsimile: (650) 857-0663 Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Class Adrienne L. Bloch COMMUNITIES FOR A BETTER ENVIRONMENT 1440 Broadway, Suite 701 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438 Attorneys for Plaintiff Communities for a Better Environment
3

Case3:05-cv-01597-EDL Document175 Filed04/01/08 Page5 of 38

1

TABLE OF CONTENTS

2 TABLE OF AUTHORITIES ......................................................................................................... iii

3 I. INTRODUCTION .............................................................................................................. 1

4 II. BACKGROUND ................................................................................................................ 2

5

A. Plaintiffs, Their Members, And The Class Are Minority AC Transit Riders

Who Suffer Severe Harm From Declining Levels Of The Bus Service On

6

Which They Rely, While The More White and More Affluent Riders Of

BART and Caltrain Have Enjoyed Dramatic Growth In Rail Service.................... 3

7

1. The Class Consists Of Minority Bus Riders Who Use AC Transit

8

To Get To Work, School, And Other Critical Destinations........................ 3

9

2. The Region’s Three Major Single-Mode Operators Serve

Demographically Distinct Riderships ......................................................... 4

10

3. AC Transit’s Riders Suffer Repeated Cuts in Bus Service While

11

BART and Caltrain Riders Enjoy Expanding Rail Service ........................ 6

12

B. MTC’s Practice Of Funding Only Capital, But Not Operating, Shortfalls,

Preserves Existing Rail Service While Causing AC Transit’s Bus Service To

13

Dwindle ................................................................................................................... 7

14

1. As The Region’s Metropolitan Planning Organization, MTC Is

Required To Prioritize Preservation Of The Existing Transportation

15

System ......................................................................................................... 8

16

2. MTC Exercises Control Over The Region’s Transportation Funding

By Adopting Policies Governing The Use Of Funds And By

17

Assigning Revenues In The RTP ................................................................ 9

18

a. MTC Policies Restrict The Use Of Funds For Operating

Purposes .......................................................................................... 9

19

b. MTC Selectively Assigns RTP Revenues To Cover Shortfalls

20

In The Funding Needed To Preserve The Existing System ............ 9

21

3. MTC’s RTPs Identify Persistent Shortfalls In The Funds AC

Transit Requires To Operate Its Existing Level Of Service ..................... 11

22

4. MTC’s Practice Of Refusing To Fund AC Transit’s Operating Shortfalls

23

But Devoting Billions Of Dollars To Funding Capital Rehabilitation

Shortfalls Overwhelmingly Benefits Rail Riders...................................... 13

24

5. MTC’s Failure To Fund AC Transit’s Operating Shortfalls Forces

25

AC Transit To Cut Service........................................................................ 15

26 III. LEGAL DISCUSSION ..................................................................................................... 15

27

A. As A Recipient Of State Funds, MTC Is Prohibited From Engaging In

Practices That Have An Unjustified Disparate Impact On Racial Minorities ...... 15

28

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1

B. Plaintiffs Have Established A Prima Facie Case Of Disparate Impact

Because MTC’s Facially Neutral Practice Of Failing To Fund Operating

2

Shortfalls Causes a Disproportionate Adverse Impact On Racial Minorities....... 19

3

1. MTC Fails To Fund Operating Shortfalls, Leaving AC Transit With

Insufficient Revenue To Preserve Its Existing Service Levels ................. 19

4

2. MTC’s Practice Of Failing To Provide AC Transit With Funds To

5

Cover Its Operating Shortfalls Causes AC Transit To Cut Service

Levels ........................................................................................................ 21

6

3. The Impact Of MTC’s Failure To Cover AC Transit’s Operating

7

Shortfalls Is Adverse ................................................................................ 24

8

4. The Impact Of MTC’s Failure To Cover Transit Operating Shortfalls

Falls Disproportionately On Minority Riders ........................................... 25

9

IV. CONCLUSION ................................................................................................................. 25

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

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1

TABLE OF AUTHORITIES

2

CASES

3 Albermarle Paper Co. v. Moody,

422 U.S. 405 (1975) ................................................................................................................. 16

4

Alexander v. Sandoval,

5

532 U.S. 275 (2001) ........................................................................................................... 16, 18

6 Bennett v. Spear,

520 U.S. 154 (1997) ........................................................................................................... 22, 23

7

Committee Concerning Community Improvement v. City of Modesto,

8

2007 WL 1456142 (E.D. Cal. May 16, 2007).......................................................................... 16

9 De La Cruz v. Tormey,

582 F.2d 45 (9th Cir. 1978)...................................................................................................... 24

10

Dothard v. Rawlinson,

11

433 U.S. 321 (1977) ................................................................................................................. 24

12 Gamble v. City of Escondido,

104 F.3d 300 (9th Cir. 1997).............................................................................................. 16, 19

13

Garcia v. Spun Steak Co.,

14

998 F.2d 1480 (9th Cir. 1993)...................................................................................... 17, 18, 25

15 Griggs v. Duke Power Co.,

401 U.S. 424 (1971) ..................................................................................................... 16, 17, 24

16

Huntington Branch, NAACP v. Town of Huntington,

17

844 F.2d 926 (2d Cir. 1988)..................................................................................................... 17

18 Keith v. Volpe,

858 F.2d 467 (9th Cir. 1988)........................................................................................ 18, 19, 25

19

Larry P. v. Riles,

20

793 F.2d 969 (9th Cir. 1986).................................................................................................... 16

21 Lau v. Nichols,

414 U.S. 562 (1974) ................................................................................................................. 24

22

Metropolitan Housing Dev. Corp. v. Village of Arlington Heights,

23

558 F.2d 1283 (7th Cir. 1977)............................................................................................ 17, 25

24 Powell v. Ridge,

189 F.3d 387 (3d Cir. 1999), overruled on other grounds,

25

Alexander v. Sandoval, 532 U.S. 275 (2001).................................................................... passim

26 Robinson v. Kansas,

117 F.Supp.2d 1124 (D. Kan. 2000), aff'd on other grounds,

27

295 F.3d 1183 (10th Cir. 2002)................................................................................................ 22

28

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1 Sisemore v. Master Financial, Inc.,

151 Cal.App.4th 1386 (2007) .................................................................................................. 16

2

Stout v. Potter,

3

276 F.3d 1118 (9th Cir. 2002).................................................................................................. 17

4 United Farmworkers of Florida Housing Project, Inc. v. Delray Beach,

493 F.2d 799 (5th Cir. 1974).................................................................................................... 24

5

FEDERAL STATUTES AND REGULATIONS

6

23 C.F.R.

7

§450.212................................................................................................................................... 21

§450.306(a)(8)............................................................................................................................ 8

8

§450.322..................................................................................................................................... 8

§450.322(b)(11) (1997)..................................................................................................... passim

9

49 C.F.R. §21.5(b)(2).................................................................................................................... 16

10

23 U.S.C.

11

§134............................................................................................................................................ 8

§134(d)(1) .................................................................................................................................. 8

12

§134(f)(1)(G)........................................................................................................................ 8, 16

§134(g)(1) (1998)................................................................................................................... 8, 9

13

§134(g)(2)(B) (1998) ......................................................................................................... 10. 19

§134(h)(1)(H)................................................................................................................. 8, 13, 20

14

42 U.S.C. §2000d-1 et seq ............................................................................................................ 15

15

49 U.S.C.

16

§5305(b)(1) ................................................................................................................................ 8

§5303(h)(1)(H)..................................................................................................................... 8, 13

17

§5303(j)(3)(C) .......................................................................................................................... 10

§5307.......................................................................................................................................... 9

18

§5309(c)(1)(A) ......................................................................................................................... 10

§5309(d)(2)(C) ........................................................................................................................... 8

19

STATE STATUTES AND REGULATIONS

20

22 California Code of Regulations

21

§98010...................................................................................................................................... 16

§98101...................................................................................................................................... 18

22

§98101(i) .................................................................................................................................. 16

§98101(i)(1)-(2) ....................................................................................................................... 16

23

24 California Government Code

§65080........................................................................................................................................ 8

25

§65080(b)(3)(A)....................................................................................................................... 10

§65089.2(b) .............................................................................................................................. 10

26

§§66508-13 ................................................................................................................................ 8

§11135.................................................................................................................... 15, 16, 18, 25

27

§11135(a) ................................................................................................................................. 16

§11139...................................................................................................................................... 18

28

§12955.8(b) .............................................................................................................................. 16

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1 California Health & Safety Code § 50106 ...................................................................................... 5
2 OTHER AUTHORITIES
3
Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240.............................. 10 4

5

6

7

8

9

10

11

12

13

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18

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1

I. INTRODUCTION

2

This is a civil rights class action brought on behalf of minorities who make up the vast

3 majority of the riders of the bus system run by the Alameda-Contra Costa Transit District (“AC

4 Transit”). California law prohibits recipients of state funding from engaging in practices that

5 have the effect of discriminating. Unfortunately, policies and practices of Defendant

6 Metropolitan Transportation Commission (“MTC”) have had the effect of creating and

7 maintaining two separate but unequal transit systems in the San Francisco Bay Area: a shrinking

8 bus system for minority transit riders of AC Transit, and an expanding rail system for the 9 substantially more white ridership of the region’s major rail providers. Plaintiffs’ motion for 10 summary adjudication focuses on MTC’s facially neutral practice of refusing to fund shortfalls in

11 the operating revenues transit providers require to operate their existing service levels, while

12 funding capital rehabilitation costing billions of dollars. As Plaintiffs demonstrate, the

13 undisputed facts establish a prima facie case of disparate impact discrimination. MTC’s practice

14 has left AC Transit no choice but to reduce critical bus service, to the severe detriment of its

15 minority riders. The disproportionately white ridership of the region’s rail providers have not had 16 to endure similar service cuts; quite the contrary, they have enjoyed dramatic expansions in the 17 levels of rail service available to them.

18

As the metropolitan planning organization (“MPO”) for the Bay Area region, with control

19 of the region’s transportation purse strings, MTC is directly responsible for the stark disparity in

20 levels of transit service run by operators within its jurisdiction. AC Transit serves a ridership that

21 is overwhelmingly made up of riders of color. Indeed, AC Transit carries the highest proportion

22 of minority riders – nearly 80% – of all the region’s transit operators. In contrast, the Bay Area 23 Rapid Transit District (“BART”) and the Peninsula Corridor Joint Powers Board (“Caltrain”) 24 serve riderships more than twice as white as AC Transit’s.

25

This motion focuses on the disparate impact of just one of MTC’s practices: its failure to

26 fund transit operating shortfalls in its long-range plan. In the process of preparing its long-range

27 plan, known as the Regional Transportation Plan (“RTP”), MTC is required by law to prioritize

28 the preservation of the existing transportation system. While MTC places great emphasis on

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1 preservation of the existing rail system, it fails to accord the same priority to the existing bus

2 system, instead allowing it to deteriorate. Since 1994, MTC has consistently directed billions of

3 dollars to rectify shortfalls in revenues needed for capital rehabilitation (i.e., the renewal and

4 replacement of capital infrastructure), while not spending one dollar to remedy the shortfalls in

5 revenues required by AC Transit for day-to-day operations. This decades-long practice has

6 forced AC Transit to reduce the amount of service it can deliver to its heavily minority ridership,

7 impairing the ability of the Plaintiffs, their members, and the Class of minority bus riders to get to

8 work, school, the grocery store, and other essential destinations. The disproportionately white

9 ridership of BART and Caltrain, by contrast, has not had to endure any service cuts, and indeed

10 over this same period enjoyed remarkable service expansions of 48% and 80%, respectively. 11 (See graph, Attachment A.1)

12

At trial, Plaintiffs will present evidence that MTC engages in numerous other practices

13 that have the intent and the effect of discriminating against minority riders. This motion for

14 summary adjudication, however, focuses only on MTC’s practice of funding transit capital

15 rehabilitation, but not operating, shortfalls. The undisputed facts establish a prima facie case of

16 disparate impact discrimination because this practice, while neutral on its face, has a

17 disproportionate adverse impact on AC Transit’s minority riders. Accordingly, Plaintiff’s motion

18 should be granted, shifting the burden to MTC to justify its practice as a “business necessity.”

19

II. BACKGROUND

20

This Memorandum first discusses, in Part II-A, below, the Class of minority AC Transit

21 riders, the importance of transit service to them, and the demographics of and changes in service

22 levels on the region’s main single-mode transit operators. It then, in Part II-B, describes 23 defendant MTC’s control over and responsibility for funding the region’s transportation system.

24 // 25 26 //

27

28 1

Source: Declaration of Thomas A. Rubin (“Rubin Decl.”), Exh. 1, attachment E.

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1 A. 2 3

Plaintiffs, Their Members, And The Class Are Minority AC Transit Riders Who Suffer Severe Harm From Declining Levels Of The Bus Service On Which They Rely, While The More White and More Affluent Riders Of BART and Caltrain Have Enjoyed Dramatic Growth In Rail Service

4

1. The Class Consists Of Minority Bus Riders Who Use AC Transit To Get To

Work, School, And Other Critical Destinations

5 Bus service is a critical gateway that provides the communities it serves with access to a

6 broad range of opportunities: from employment to education to health care and beyond. The

7 Class, composed of minorities who use the crucial bus service provided by AC Transit, is

8 represented by Sylvia Darensburg and Vivian Hain.2

9 Ms. Darensburg is a low-income, African-American single mother of three who resides in

10 East Oakland. She and her children depend on AC Transit buses to get to work, school, college

11 classes, medical appointments, grocery shopping, social services, and volunteer activities.

12 Declaration of Richard A. Marcantonio In Support of Motion for Summary Adjudication

13 (“Marcantonio Decl.”), Exh. 40 at 19, 24-25, 40-41, 62, 76-77, 84, 98-99, 137; id., Exh. 63, No. 5

14 at 12 & No. 10 at 19. Plaintiff Vivian Hain is a low-income Latina mother of three who formerly

15 lived in East Oakland and now lives in Berkeley. She has owned several old and unreliable

16 automobiles since 1998; during the frequent and lengthy periods when her car does not run, she

17 and her family depend entirely on AC Transit buses for all of their transportation needs. Id., Exh.

18 42 at 9, 14-15, 25-26; id., Exh. 64, No. 8 at 16.3

19 Service cuts have dramatically and negatively affected Plaintiffs and the Class. For

20 example, since evening service was discontinued on the bus route nearest Ms. Darensburg’s

21 home, she has been forced to walk 22 blocks in an unsafe area to get home late at night after

22 working overtime or attending her evening college classes. Id., Exh. 63 , No. 18 at 35-36.

23 Because she has been followed and harassed, she is afraid of making this trip by foot and now

24 2

On December 10, 2007, this Court certified a Plaintiff Class consisting of Black, Hispanic,

25 Asian or Pacific Islander, and American Indian or Alaskan native individuals who are patrons of

AC Transit. See D.Ct. Order (Doc. No. 145) at 6.

26 3

Plaintiffs Communities for a Better Environment and Amalgamated Transit Union, Local

27

192 have members who, like Plaintiffs Darensburg and Hain, are minority riders who use AC Transit for their transportation needs; they, too, have been harmed by cuts in the service they use.

28 Id., Exh. 48, Nos. 12-14 at 31-34; id., Exh. 49, Nos. 12-14 at 31-34.

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1 hesitates to go out at night. Id. Other service cuts in 2003 have forced her to walk through unsafe

2 areas just to visit her daughter. Id., Exh. 41 at 195. Route 58X used to provide a direct route

3 from her neighborhood to downtown Oakland, linking Ms. Darensburg to job searches and legal

4 appointments for her daughter; since its elimination in 2003, however, it takes Ms. Darensburg

5 twice as long to get downtown. Id., Exh. 40 at 139; Exh. 41 at 160. For Ms. Hain, service cuts

6 have made it difficult to complete her college courses and for her daughters Jasmine and Janina to

7 get to school. Marcantonio Decl., Exh. 64, No. 11 at 21-23. Thus, when the bus route to

8 Jasmine’s elementary school was eliminated in 2004, Ms. Hain struggled daily to find a way to

9 get her daughter to school. When Ms. Hain’s car was not running – periods that lasted as long as

10 two months – Jasmine missed one or two days of school per week and Ms. Hain was frequently

11 forced to spend $20 on cab fare just to get her daughter to school. Id. at 22; Exh. 42 at 107-08.

12

The Class Representatives are also vulnerable to fare increases. Ms. Darensburg’s limited

13 monthly budget requires careful planning for every expense; even small increases in

14 transportation costs leave less money for food, rent, utilities, or other life necessities. Id., Exh.

15 63, No. 18 at 36 & No. 19 at 37. Similarly, Ms. Hain has been forced to choose between

16 spending scarce family income on food or bus fare. Id., Exh. 64, No. 19 at 37.

17

The predicaments of Class Representatives Sylvia Darensburg and Vivian Hain are typical

18 of the Class. Like them, many other low-income minority riders of AC Transit are particularly

19 vulnerable to bus service reductions and fare increases. As MTC has noted, when inadequate

20 operating funding leads to service cuts and fare hikes, these riders are the “[h]ardest hit.”

21 Marcantonio Decl., Exh. 57 at 13 & App. at 5. MTC has also found that the cost of transportation

22 is one of their “top transportation barriers.” Id., Exh. 65 at 1.

23

2. The Region’s Three Major Single-Mode Operators Serve Demographically

24

Distinct Riderships

The Bay Area region is home to three large single mode transit agencies – AC Transit, 25

which operates the Bay Area’s largest bus-only system, and BART and Caltrain, which operate 26

rail systems. MTC’s 2006 demographic survey of transit operators confirmed that the rail 27

providers serve riderships that are substantially more white and affluent than the riders who 28

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1 depend on AC Transit’s bus service.

2

AC Transit currently serves about 65 million riders a year, providing local and Transbay

3 service within Alameda and Contra Costa counties with connecting service to three other

4 counties, including San Francisco. Class Representatives Darensburg and Hain represent a Class

5 of minorities who ride AC Transit. See D. Ct. Order (Doc. No. 145) (order certifying Class). As

6 low-income members of racial minorities, they share common characteristics with many other AC

7 Transit riders: taken as a whole, 78% of AC Transit’s riders (local plus Transbay) are minorities. 8 Id., Exh. 46 at 10 & Table 1. 4 Indeed, as MTC’s proffered statistical expert acknowledges, AC

9 Transit carries the highest percentage of minority riders of any transit agency in the Bay Area. Id.

10 Its ridership is also less affluent than BART or Caltrain’s, as more than a third of all AC Transit 11 riders are extremely–low income, earning below $25,000.5

12

BART, with a ridership of about 100 million, is the region’s largest rail-only operator.

13 Declaration of Thomas A. Rubin In Support of Plaintiffs’ Motion for Summary Adjudication

14 (“Rubin Decl.”), Exh. 2 at 46 n.27. Originally serving three counties (Alameda, Contra Costa and

15 San Francisco), BART expanded its coverage to a fourth (San Mateo) in 2003. Although

16 BART’s geographical service area overlaps extensively with that of AC Transit, the

17 demographics of its ridership are entirely different: almost half of its riders (46%) are white and 18 fewer than 13% have incomes below $25,000.6

19

Like BART, Caltrain provides only rail service. And like BART, almost half (49%) of its

20 riders are white. Fewer than 16% of Caltrain riders have incomes below $25,000. Caltrain serves

21

4

Although some of AC Transit's routes are designated “Transbay” and others “local,” the

service provided on these two types of routes overlaps, with Transbay buses carrying local riders

22

before crossing the Bay Bridge. Id., Exh. 14 at 559. Even if it were appropriate to distinguish AC Transit’s Transbay from its local service, the proportion of white riders on AC Transit’s

23

Transbay service, like its local service, is still far lower, at 33.1%, than that of BART or Caltrain. Id., Exh. 56 at 4.1-18.

24 5

In Alameda and Contra Costa Counties, a family of four with an income of $25,100 is

“[e]xtremely-low income,” defined under state law as 30% or less an area median income. Cal.

25 Health & Safety Code §50106; http://www.hcd.ca.gov/hpd/hrc/rep/state/cdbg_home07.pdf.

Annual ridership: Marcantonio Decl., Exh. 20 at 12, 14; Rubin Decl., Exh. 2 at p. 47 n.27.

26 Service area: Exh. 32 at 2.1-7. Demographics: Marcantonio Decl., Exh. 46 at 10 & Table 1; id.,

Exh. 14 at 501 & Exh. 15; id., Exh. 19 at 6; id., Exh. 56 at 4.1-19; Berk Decl., Exh. A, ¶4.

27 6

Service area and ridership: Marcantonio Decl., Exh. 20 at 24-26. Demographics: Id.,

28 Exh. 14 at 501 & Exh. 15; id., Exh. 19 at 6; id., Exh. 56 and id. at 4.4-19.

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1 about 10 million riders annually (one-sixth as many as AC Transit), providing service in three 2 counties, from Gilroy and San Jose in the south to San Francisco in the north.7

3

These three transit agencies share common traits that are otherwise unique among the

4 region’s major transit agencies: each operates a single “mode” (bus or rail) and each serves 5 multiple counties. AC Transit and BART, in particular, serve overlapping areas.8 Despite these

6 similarities, they serve radically different riderships. The percentage of white riders on the rail

7 service provided by BART and Caltrain is more than double that of AC Transit’s bus service

8 (46% on BART and 49% on Caltrain, but 22% on AC Transit). At the same time, the percentage

9 of BART and Caltrain riders with extremely-low incomes is less than half that of AC Transit

10 (12.6% on BART and 15.6% on Caltrain, but 36.2% on AC Transit). Marcantonio Decl., Exh. 56

11 at 4.1-19, 4.4-19, 4.6-18.

12

3. AC Transit’s Riders Suffer Repeated Cuts in Bus Service While BART and

13

Caltrain Riders Enjoy Expanding Rail Service

14

Over the period that MTC prepared and adopted its last four long-range plans (1992-93 to

15 2005-06), as the population of AC Transit’s service area grew by 11.3%, AC Transit service

16 levels declined sharply: Its 2005-06 service levels were 9.6% lower than its initial “baseline” in 17 1992-93. Rubin Decl., ¶¶11-12 & Exh. 1 at ¶¶103, 106.9 These declining service levels have

18 included the elimination of some evening service and of entire routes, forcing Plaintiffs and the

19 class to walk through unsafe neighborhoods simply to get home or to visit family, requiring them

20 to spend significantly more time in transit, sometimes leaving them no public transportation

21 alternative, and simply making it more difficult for them to go about their daily lives. See supra,

22 Part II-A-1. MTC’s proffered expert, Stefan Boedeker, acknowledges that “[t]he sharp decrease

23 7

Demographics: Marcantonio Decl., Exh. 14 at 501 & Exh.15; id., Exh. 19 at 6; id., Exh.

24 56. Service area and description: Marcantonio Decl., Exh. 20 at 32; id., Exh. 32 at 2.1-9.

Annual ridership: Exh. 20 at 34. Income demographics: Marcantonio Decl., Exh. 56 at 4.6-17.

25 8

Other large transit agencies are multi-modal and serve smaller service areas. For instance,

26

San Francisco MUNI and Santa Clara Valley Transit Authority each operates both rail and bus service, and each serves primarily one county. Marcantonio Decl., Exhs. 19, 20.

27 9

Service levels are measured in revenue vehicle miles, which the Federal Transit

Administration defines as “miles that vehicles . . . actually travel while in revenue service.”

28 Rubin Decl., Exh. 1 at ¶102.

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1 in number of routes served by AC Transit is an undisputed fact.” Marcantonio Decl., Exh. 46 at

2 ¶42.

3

While AC Transit’s overwhelmingly minority ridership has endured declining levels in

4 their bus service, the more white, more affluent ridership of BART and Caltrain has enjoyed

5 stunning growth in rail service levels. As reflected graphically in Attachment A to this brief,

6 during the same period in which AC Transit service declined by nearly 10%, BART and Caltrain

7 riders benefited from service levels that increased by 48.2% and 80.4%, respectively. Rubin

8 Decl., ¶11 & Exh. 1 at ¶103.

9

BART’s 48.2% growth in service levels included extensions of its pre-1993 71.5 mile, 33

10 station system to new stations at North Concord/Martinez, Colma, Pittsburg/Bay Point, and San

11 Francisco International Airport, as well as reductions in “headways” (time between trains) during

12 commute hours, thus reducing waiting times for commuters. BART currently has in various

13 stages of planning, design, and construction further system expansions, including extensions to

14 Warm Springs and San Jose. Id., Exh. 1 at ¶104.

15

Caltrain’s 80.4% increase is attributable primarily to introduction of its “Baby Bullet”

16 service, providing rapid service between San Jose and San Francisco. Caltrain’s total weekday

17 service increased from 60 trains per day to 96 between 1992-93 and the present. Id. at ¶105.

18

B. MTC’s Practice Of Funding Only Capital, But Not Operating, Shortfalls

19

Preserves Existing Rail Service While Causing AC Transit’s Bus Service To Dwindle

20

As the metropolitan planning organization for the Bay Area, MTC exercises substantial

21 control over transportation funding, both through its adoption of funding policies and through its

22 authorship of the region’s long-range transportation plan, known as the Regional Transportation

23 Plan (“RTP”). MTC effectively controls the type and amount of service that individual transit

24 operators are able to provide. By providing needed funding, MTC makes it possible for an

25 operator to provide service; by denying needed funding, MTC prevents it from doing so.

26 Although federal law requires MTC to “emphasize the preservation of the existing transportation

27 system,” 23 U.S.C. §134(h)(1)(H), MTC has consistently refused to fund shortfalls in the

28 revenues that AC Transit needs to continue operating its existing level of service. At the same

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1 time, MTC channels billions of dollars to fund shortfalls in revenues that BART and Caltrain use,

2 not simply to maintain, but actually to expand, their respective levels of service.

3

1. As The Region’s Metropolitan Planning Organization, MTC Is Required To

4

Prioritize Preservation Of The Existing Transportation System

MTC is the metropolitan planning organization (“MPO”) for the nine-county San 5

Francisco Bay Area region. 23 U.S.C. §134(d)(1); 49 U.S.C. §5305(b)(1). It is the designated 6

recipient of numerous federal and state funding sources, charged with setting policies and making 7

decisions about the allocation and use of funds within its control. See, e.g., Marcantonio Decl. 8

Exhs. 61 at 2; 62. It is also charged with adopting the region’s RTP. 23 U.S.C. §134(g)(1) 9
(1998);10 Cal. Gov. Code §§65080, 66508-13. 10

In carrying out these roles, federal law requires MTC to “emphasize the preservation of 11
the existing transportation system.” 23 U.S.C. §134(h)(1)(H) (emphasis added);11 49 U.S.C. 12

§5303(h)(1)(H); 23 C.F.R. § 450.306(a)(8); see also 49 U.S.C. §5309(d)(2)(C). Thomas A. 13

Rubin is an expert with over 30 years in the field of transit finance who, among other things, was 14

engaged by the predecessor to the Federal Transit Administration to develop guidelines for 15

assessing the financial capacity of applicants for federal transit grants; he explains that “[f]ederal 16

law makes it very clear to MPOs like MTC that preserving existing transit operations is the 17

highest priority of transit planning and transit funding.” Rubin Decl., ¶13 & Exh. 1 at ¶¶2-9, 56. 18

Although this requirement does not mean that no transit route should ever be eliminated, it does 19

require that MTC place emphasis on preserving existing levels of service “before any additional 20

system expansion is to be considered.” Marcantonio Decl., Exh. 8 at 19, MTCP 004449. MTC’s 21

own planning process claims to prioritize system preservation over system expansion. Rubin 22

Decl., ¶ 13 & Exh. 1 at ¶¶56-73; id., Exh. 2 at ¶¶36-44; Marcantonio Decl., Exh. 4 at 150. 23
10 The RTP practice at issue in this motion was governed by the law as it stood at the time

24 MTC prepared and adopted the current RTP (2003-2005) and its predecessors in 1994, 1998 and

2001. Accordingly, while Plaintiffs refer to current federal law, they also provide prior versions

25 of the key statute and regulation, as they were effective prior to the Congressional reauthorization

in August 2005. The 1998 version of the statute, 23 U.S.C. §134, is attached to the Marcantonio

26 Decl. as Exh. 5, while the 1997 version of the regulation, 23 C.F.R. §450.322, is attached as Exh.

6.

27 11

See former provision at 23 U.S.C. §134(f)(1)(G) (attached to Marcantonio Decl. as Exh.

28 5.)

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1

2. MTC Exercises Control Over The Region’s Transportation Funding By

Adopting Policies Governing The Use Of Funds And By Assigning Revenues

2

In The RTP

3

MTC exercises significant control, direct and indirect, over the distribution and use of

4 federal, state, and local transportation funding sources.12 It does so, inter alia, by adopting

5 policies governing the use of specific funding sources and by assigning revenues in the RTP.

6

a. MTC Policies Restrict The Use Of Funds For Operating Purposes

7

Broadly speaking, transit expenditures are of three kinds: (a) “operating” expenses are

8 used to operate existing transit service; (b) “capital rehabilitation” expenses (also called “capital

9 renewal and replacement”) are used to renew and replace existing capital infrastructure; and (c)

10 “capital expansion” expenses are used to expand the system. The first two kinds of expense are

11 incurred in preserving the existing system, while the third is incurred in expanding or improving

12 it. Rubin Decl., ¶18 & Exh. 1 at ¶36.

13

Although statutory restrictions limit the purposes for which some funding sources may be

14 used, a wide range of sources may be used for multiple purposes, including both transit operations

15 and capital replacement. Rubin Decl., Exh. 1 at ¶ 37. MTC has adopted policies that preclude

16 numerous funding sources from being used for operating purposes, even though such use is

17 authorized by statute. For instance, MTC does not allow federal “formula” funds under 49 U.S.C.

18 §5307 to be used for the statutorily-authorized purpose of preventive maintenance, which is an

19 operating cost. Rubin Decl., ¶20 & Exh. 1 at ¶¶37-38, 117-132. MTC instead uses these funds to

20 address transit capital rehabilitation needs. Id.

21

b. MTC Selectively Assigns RTP Revenues To Cover Shortfalls In The

Funding Needed To Preserve The Existing System

22 One of MTC’s most significant responsibilities is to prepare the region’s “long-range

23 transportation plan,” or RTP. 23 U.S.C. §134(g)(1) (1998). The RTP must contain:

24

A financial plan that demonstrates how the adopted long-range

25

transportation plan can be implemented, indicates resources from public and private sources that are reasonably expected to be made

26

27

12 For a more complete account of MTC’s control over transportation funding, see the declaration of Plaintiffs’ transit finance expert, Thomas A. Rubin. Rubin Decl. at ¶¶19-21; id. at

28 Exh. 1 at ¶¶38-39 & Exh. C; id. at Exh. 2 at ¶¶233-235.

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1

available to carry out the plan, and recommends any additional

financing strategies for needed projects and programs.

2 Id. at 23 U.S.C. §134(g)(2)(B) (1998); see also Cal. Gov. Code § 65080(b)(3)(A). A

3 transportation project or program that MTC excludes from its RTP is ineligible for virtually

4 every source of federal and state funding. 49 U.S.C. §5309(c)(1)(A); see also id. at

5 §5303(j)(3)(C); Cal. Gov. Code §65089.2(b).

6 Since 1991, Congress has required long-range transportation plans to be fiscally

7 constrained. See Intermodal Surface Transportation Efficiency Act of 1991, Pub. L. 102-240.

8 Fiscal constraint means that MTC may not include in an RTP any project or program that costs

9 more than can be funded out of reasonably anticipated revenues. Marcantonio Decl., Exh. 7 at

10 MTCP062960-61; Exh. 43 at 46-47. Thus, the adopted RTP may not include “shortfalls,” i.e.,

11 programs or projects for which anticipated revenues exceed expenditures. Id., Exh. 4 at 215-16;

12 Rubin Decl., ¶15 & Exh. 1 at 33, ¶ 77. To avoid adopting an RTP that contains shortfalls, federal

13 law requires MPOs first to “identify” shortfalls, and then to “cover” them:

14

The estimated revenue by existing revenue source (local, State, and

15

Federal and private) available for transportation projects shall be

determined and any shortfalls identified. Proposed new revenues

16

and/or revenue sources to cover shortfalls shall be identified,

including strategies for ensuring their availability for proposed

17

investments. Existing and proposed revenues shall cover all

forecasted capital, operating, and maintenance costs.

18 23 C.F.R. §450.322(b)(11) (1997) (emphasis added) (Marcantonio Decl., Exh. 6). The regulation

19 does not distinguish between operating and capital shortfalls; it requires the total shortfall to be

20 “covered,” without regard to its capital and operating components. Rubin Decl., Exh. 1 at ¶81.

21 Anything less would not meet the strict requirement of fiscal constraint.

22 MTC follows a four-step process in identifying and covering shortfalls in its RTPs:

23

• First, it identifies the inventory of revenues that will be reasonably available from all

24

sources over 25 years.

25

• Second, it assesses the cost of operating and maintaining the existing transportation

system over that same period, operator by operator. (As noted above, both operating and

26

capital rehabilitation expenditures are needed to operate and maintain the existing system.

MTC projects operating and capital rehabilitation costs separately.)

27

• Third, it assigns revenues to existing system operations and maintenance costs based on

(1) their statutory eligibility and (2) MTC Commission policies governing the use of

28

funding sources. As also noted above, MTC has adopted various policies that impose

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additional limitations on the use of various funds, beyond those found in statute. Thus, as

to funding sources that are statutorily eligible for both capital and operating purposes, but

2

that MTC has by policy chosen to limit to capital, MTC will assign revenues from this

source only to capital needs. If the assigned revenues are insufficient to meet the costs, a

3

shortfall exists. After assigning revenues, MTC “identifies” shortfalls. MTC identifies

each operator’s operating and capital rehabilitation shortfalls separately.

4

• Fourth, MTC determines how it will assign “uncommitted” or “new commitment” RTP

5

funding (sometimes known as “Track 1,” “regional discretionary” or “Transportation

2030” funding). MTC first funds “prior commitments” to existing projects (e.g., projects

6

already included in a prior RTP), and thereby “covers” shortfalls previously identified in

step three above. MTC then assigns any remaining funds to new projects.

7 Rubin Decl, Exh. 1 at ¶¶41-48; Marcantonio Decl., Exh. 4 at 138-139 & Exh. 32 at 2.1-1. In

8 short, after assigning revenues to costs, MTC identifies shortfalls in the funds needed to operate

9 and maintain the existing system; then, in the last RTP step, MTC determines which of the

10 previously identified shortfalls it will “cover” – and to what extent – with additional revenues.

11 Despite the fact that the requirement to “cover” shortfalls applies to all “capital, operating,

12 and maintenance costs,” 23 C.F.R. §450.322(b)(11) (1997), MTC distinguishes between

13 operating and capital rehabilitation shortfalls, separately identifying them in the RTP and, as

14 discussed below, assigning funding to cover the latter but not the former. Rubin Decl, Exh. 1 at

15 ¶81; see infra, Part II-B-4.

16

3. MTC’s RTPs Identify Persistent Shortfalls In The Funds AC Transit

17

Requires To Operate Its Existing Level Of Service

18

Since Congress imposed the requirement of fiscal constraint, MTC has adopted four RTPs

19 – in 1994, 1998, 2001, and 2005. Each one covers a 20- to 25-year time horizon, and each

20 identifies operating shortfalls and capital replacement shortfalls separately for each transit

21 operator. Marcantonio Decl., Exh. 4 at 247.

22

Operating Shortfalls: In each of these four RTPs, MTC identified an operating shortfall

23 for AC Transit: $360.5 million in the 1994 RTP, $136.2 million in the 1998 RTP, $36.7 million in

24 the 2001 RTP, and $64.4 million in the 2005 RTP. Rubin Decl., Exh. 1 at ¶95. AC Transit is the

25 only major operator that experienced operating shortfalls in each and every RTP. Marcantonio

26 Decl., Exh. 22 at 1 (2005 RTP), 2 (2001 RTP), 3 (1998 RTP) & 4 (1994 RTP). Moreover,

27 MTC’s figures substantially understate the full magnitude of the shortfall in funds required by AC

28 Transit to operate its existing level of service. As AC Transit’s persistent operating shortfall has

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1 forced it to reduce service over time, the “baseline” that MTC has treated as its “existing” service

2 level has progressively diminished in each new RTP. Rubin Decl., ¶34 & Exh. 1 at ¶108. And in

3 2003, AC Transit riders suffered significant cuts in their “baseline” of existing service that, due to

4 the timing of the cuts relative to when the “baseline” was measured, are not reflected in AC

5 Transit’s operating shortfall in the 2005 RTP. Accounting for the cost of restoring that lost

6 service, AC Transit’s true operating shortfall for the 2005 RTP period is not $64.4 million but

7 instead over half a billion dollars – approximately $565 million. Id. ¶¶35, 39 & Exh. 2 at ¶96.

8

BART, by contrast, did not have an operating shortfall in any of these four RTPs, even

9 though – unlike AC Transit – it dramatically increased its baseline of service over this same

10 period, expanding its existing rail system to new locations and increasing the frequency of its

11 service. See supra, II-A-3; Marcantonio Decl., Exh. 31 at 448-49 & Exh. 32 at 2.1-7; Rubin

12 Decl., Exh. 1 at ¶¶ 104-07. Although BART’s system preservation costs were measured against a

13 baseline of service that expanded 48% over its 1992-93 baseline, it suffered no shortfalls in the 14 revenues needed to operate even this increasing baseline of service in any of the last four RTPs.13

15

Only one of the four RTPs reflects an operating shortfall for Caltrain, $22.9 million in the

16 2005 RTP. Rubin Decl. at ¶ 94. Unlike AC Transit’s operating shortfalls, however, which have

17 been measured against a baseline of declining service, Caltrain’s one operating shortfall was

18 measured against a baseline of expanded service, as Caltrain had just inaugurated its new “Baby

19 Bullet” service expansion. Marcantonio Decl., Exh. 22; id., Exh. 31 at 449-50; id., Exh. 32 at

20 2.1-9; Rubin Decl., Exh. 1 at ¶¶94, 105.

21

Capital Rehabilitation Shortfalls: All three operators had capital rehabilitation shortfalls

22 in the three most recent RTPs. Rubin Decl. at ¶37 & Exh. 1 at ¶92, 95; see also Marcantonio

23 Decl., Exh. 22 at 1-3. BART and Caltrain’s capital rehabilitation shortfalls are substantial – not

24

13 The point here is that, while AC Transit’s “baseline” declined in each successive RTP, BART’s service levels increased, establishing a new, higher baseline for successive RTPs; even

25

so, BART still did not experience any operating shortfalls. At trial, Plaintiffs will additionally address MTC’s separate practice of spending billions of dollars on BART expansion projects that

26

have been responsible, in part, for allowing BART to establish higher baselines in each successive RTP. Rubin Decl. at ¶¶98-99. This motion, however, focuses solely on MTC’s

27

practice regarding use of funds to operate and maintain the existing “baseline” system (i.e., its spending decisions regarding operating and capital rehabilitation funds); it does not address

28 MTC’s spending decisions regarding capital expansion funds.

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1 surprisingly, as rail is a highly capital intensive mode of transit. Id., Exh. 44 at 16, ¶4 (MTC’s

2 expert).

3

4. MTC’s Practice Of Refusing To Fund AC Transit’s Operating Shortfalls But

4

Devoting Billions Of Dollars To Funding Capital Rehabilitation Shortfalls Overwhelmingly Benefits Rail Riders

5

Under federal law, identifying the shortfalls in the funds required to operate and maintain

6 the existing “baseline” of service is but a prelude to covering those shortfalls. 23 C.F.R.

7 §450.322(b)(11) (1997). After initially identifying those shortfalls, MTC determines which

8 shortfalls it will cover, and to what extent. Both operating and capital replacement expenditures

9 are necessary to operate and maintain a “baseline” of existing transit service, Rubin Decl., ¶¶18,

10 22-23 & Exh. 1 at ¶36; Marcantonio Decl., Exh. 4 at 247, the preservation of which MTC is

11 charged with emphasizing. 23 U.S.C. §134(h)(1)(H); 49 U.S.C. §5303(h)(1)(H). MTC’s

12 longstanding practice, however, has been to fund capital rehabilitation, but not operating,

13 shortfalls.

14

MTC has failed to fund any transit operating shortfalls in any of its RTPs, leaving AC

15 Transit with unfunded shortfalls in the revenue it needs to operate its existing service level.

16 Rubin Decl., ¶¶29, 36 & Exh. 1 at ¶¶95-97; Marcantonio Decl., Exh. 31 at 447-48. MTC admits

17 that it did not take or consider taking “any steps or actions to cover AC Transit’s RTP transit

18 operating shortfall at any time since the adoption of the 1994 RTP.” Marcantonio Decl., Exh. 47,

19 No. 54 at 5-6.

20

In contrast to MTC’s failure to fund operating shortfalls, MTC has funded a significant

21 portion of the capital rehabilitation shortfalls identified in the RTP process. Pursuant to that

22 practice, MTC has devoted on the order of $1 billion in each of the last three RTPs to covering

23 transit capital rehabilitation shortfalls. Id., Exh. 22 at 1-3; Rubin Decl., ¶¶36-37 & Exh. 1 at ¶95.

24

Because AC Transit has had persistent operating shortfalls and because rail is capital

25 intensive, Marcantonio Decl., Exh. 44 at 16, ¶4, MTC’s practice of funding capital rehabilitation

26 but not operating shortfalls has overwhelmingly favored the needs of BART and Caltrain riders.

27 See, e.g., Rubin Decl., Exh. 1 at ¶ 92. For example, MTC assigned $598.3 million to BART and

28 $312.1 million to Caltrain in the 1998 RTP to cover their capital rehabilitation shortfalls, and

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1 $472.8 million to BART and $143.8 million to Caltrain in the 2001 RTP. Rubin Decl. at ¶37 &

2 Exh. 1 at ¶95. Although MTC assigned some funds to AC Transit to cover its capital

3 rehabilitation shortfalls, the amounts assigned covered a far smaller proportion of its total

4 shortfalls (operating plus capital rehabilitation) than of BART or Caltrain’s. In the 1998 RTP,

5 MTC covered only 45.1% of AC Transit’s total shortfall, while covering 75% of BART and

6 Caltrain’s. Id. In the 2001 RTP, MTC covered only 83.7% of AC Transit’s total shortfall, as

7 compared to 100% of BART and Caltrain’s. Id. In the 2005 RTP, MTC assigned $1.073 billion

8 to BART to cover 43.6% of its total shortfall, but only covered 14.02% of AC Transit’s total

9 shortfall. Id. at ¶39 & Exh. 2 at ¶102. (A chart summarizing these figures is provided at Rubin

10 Decl. at ¶¶37-39.)

11

MTC’s practice of funding capital rehabilitation, but not operating, shortfalls is notable

12 not only because of its differential impact on AC Transit, but also because the regulation

13 requiring MTC to “cover” shortfalls makes no distinction between the types of shortfalls that

14 must be covered. See 23 C.F.R. §450.322(b)(11) (1997) (Marcantonio Decl., Exh. 6); Rubin

15 Decl., ¶17 & Exh. 1 at ¶81. If any distinction is to be drawn, it is operating shortfalls that should

16 be prioritized. Rubin Decl., Exh. 1 at ¶82. The reason is that “operating shortfalls more

17 immediately jeopardize the existing system, while capital rehabilitation shortfalls do not.” Id. As

18 MTC acknowledges, a shortfall for transit capital replacement generally means deferred

19 maintenance, not that unsafe transit vehicles are being operated. Id.; Marcantonio Decl., Exh. 16

20 at 792-93. By contrast, “if an operator faces a shortfall in its operations funding, the standard

21 result is an immediate reduction in transit service operated” because “[t]ransit agencies operate on

22 the basis of balanced annual budgets, where revenues must not be less than operating expenses.” 23 Rubin Decl., ¶ 23 & Exh. 1 at ¶82.14

24 14

Mr. Rubin does not assert that “capital rehabilitation shortfalls can or should be

25

completely ignored.” Id. at ¶24 & Exh. 1 at ¶83. His expert opinion is “simply that long-term transportation requires a balance. Operating shortfalls cannot be subordinated wholesale to

26

capital rehabilitation shortfalls without jeopardizing the existing system in the very short term.” Id.; see also id. (“[U]nrelieved capital rehabilitation shortfalls are unlikely to have an immediate

27

significant impact on the existing system, whereas unrelieved operating shortfalls pose serious and immediate threats to the existing system in the form of service cuts, fare increases, and other

28 impacts on the quantity and quality of transit services provided.”).

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1

5. MTC’s Failure To Fund AC Transit’s Operating Shortfalls Forces AC

Transit To Cut Service 2

MTC’s consistent failure to fund AC Transit’s operating shortfalls has forced AC Transit 3

to cut service. A transit provider’s operating shortfall – by definition – measures the extent to 4

which it lacks the funds needed to continue to deliver its baseline of existing service. Rubin Decl. 5

at ¶22 & Exh. 1 at ¶ 178. MTC acknowledges that operating shortfalls require either a reduction 6
in costs or an increase in revenues.15 Indeed, MTC has long acknowledged that the operating 7

shortfalls it leaves unfunded in its RTPs translate into service reductions, potentially coupled with 8

fare increases. See, e.g., Marcantonio Decl., Exh. 54 at 60 (“Transit Baseline operating shortfalls 9

. . . are left unfunded [in the 1994 RTP]. . . . Consequently, service reductions are assumed to 10

account for significant shortfalls.”); id. at 63 (shortfall in transit operating funds “has required a 11

projected 5 percent service cutback from planned service levels for,” inter alia, “AC Transit”). 12

More recently, MTC explained to the California Legislature that its draft 2005 RTP “projects a 13

transit operating shortfall totaling $1.6 billion over 25 years that will need to be addressed with 14

similar fare and service changes absent a new source of operating funds.” Id., Exh. 58 at 9 15

(emphasis added). 16

17 18 A. 19

III. LEGAL DISCUSSION
As A Recipient Of State Funds, MTC Is Prohibited From Engaging In Practices That Have An Unjustified Disparate Impact On Racial Minorities

20

California’s analogue to Title VI of the federal Civil Rights Act of 1964, 42 U.S.C.

21 §2000d-1 et seq., found in Section 11135 of the Government Code, prohibits recipients of state

22 funding from engaging in practices that have the intent or effect of discriminating. Cal. Gov.

23

15 Marcantonio Decl., Exh. 4 at 211-12 (MTC’s Deputy Director of Policy testifying that operators have “a number of different things they can do to deal with” operating shortfalls: “raise

24

fares to cover the difference, do . . . cost efficiency measures to realign their services, or they may choose to cut service”); see also id., Exh. 12 at 384-85. Similarly, MTC’s Executive Director

25

identified “options for addressing . . . operating shortfalls”: “a) increases in local revenue under the control of the operator—in most cases, this will be fare revenue increases”; “b) reductions in

26

costs that do not result in decreased service delivery: i.e. increased operating efficiencies”; “c) reductions in costs through service reductions”; “d) increases in federal, state or regional

27

operating subsidies … Under a financially constrained plan, the Commission . . . does not have the ability to assume the fourth option.” Id., Exh. 18 at MTCP103504 (emphasis added). MTC’s

28 expert agrees. See Marcantonio Decl., Exh. 43 at 48-50, 137-38.

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1 Code §11135(a); 22 Cal. Code Regs. §98101(i) (prohibiting “recipient[s]” of state funds from,

2 inter alia, “utiliz[ing] criteria or methods of administration that . . . (1) have the purpose or effect

3 of subjecting a person to discrimination on the basis of ethnic group identification, religion, age,

4 sex, color, or a physical or mental disability”) (emphasis added). As a “recipient” of state funds, 5 MTC is subject to these prohibitions.16

6

To establish a prima facie case of disparate impact discrimination, a plaintiff must show:

7

(1) the occurrence of certain outwardly neutral practices, and (2) a

significantly adverse or disproportionate impact on persons of a

8

particular type produced by the defendant’s facially neutral acts or

practices. Demonstration of discriminatory intent is not required

9

under disparate impact theory.

10 Gamble v. City of Escondido, 104 F.3d 300, 306 (9th Cir. 1997) (citations omitted) (construing

11 the federal Fair Housing Act); see also Sisemore v. Master Fin., Inc., 151 Cal. App. 4th 1386,

12 1420-21 (2007) (prima facie case of disparate impact established where “facially neutral practice”

13 “has a disproportionate adverse effect upon members of a [protected] class”) (construing state 14 Fair Employment and Housing Act).17 Where the plaintiff has established a prima facie case of

15 disparate impact, the burden shifts to defendant to establish a “business necessity” for the

16 challenged practice. Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971); see also Larry P. v. 17 Riles, 793 F.2d 969, 982 (9th Cir. 1986) (“educational necessity”).18

18

19

16 MTC is a “local agency” that “regularly employs five or more persons,” Marcantonio Decl., Exhs. 2-3, and “receives State Support . . . in an amount in excess of $10,000 in the

20

aggregate per State fiscal year,” id., Exh. 60 at 28-30, and thus is a “recipient” subject to the prohibitions of Section 11135. 22 Cal. Code Regs. §98010.

21 17 California’s disparate impact regulations directly parallel federal Title VI regulations.

Both prohibit “recipient[]s of” government funds from “utiliz[ing] criteria or methods of

22 administration” which have the “effect” of discriminating against protected groups. Compare 49

C.F.R. §21.5(b)(2), with 22 Cal. Code Regs.§ 98101(i)(1)-(2). Although the federal prohibition

23 against disparate impact discrimination by recipients of federal funding is no longer privately

enforceable, see Alexander v. Sandoval, 532 U.S. 275, 293 (2001), it is appropriate to rely on

24 federal disparate impact caselaw to construe Section 11135. See Comm. Concerning Cmty.

Improvement v. City of Modesto, No. CV F 04 6121 LJO DLB, 2007 WL 1456142, at *17-18 &

25 n.12 (E.D. Cal. May 16, 2007); see also, e.g., Sisemore, 151 Cal. App. 4th at 1420-21 (relying on

federal disparate impact caselaw to interpret state Fair Housing and Employment Act).

26 18

On surrebuttal, the plaintiff can still prevail by showing the existence of less

27

discriminatory alternatives. See Albemarle Paper Co. v. Moody, 422 U.S. 405, 425 (1975); see also Cal. Gov. Code §12955.8(b) (establishing parallel burden shifting scheme under state Fair

28 Employment and Housing Act).

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1

A disparate impact case may be brought on one of two distinct theories. Under the first

2 theory – the one relevant here – a plaintiff contends that the challenged practice has an adverse

3 impact on minorities because the practice harms a population that, for reasons unrelated to the

4 defendant’s conduct, is racially imbalanced. Under the other theory, a plaintiff contends that the

5 defendant’s conduct actually causes the racial imbalance in the population at issue. Both theories

6 are cognizable. See, e.g., Huntington Branch, NAACP v. Town of Huntington, 844 F.2d 926, 937

7 (2d Cir. 1988) (“The discriminatory effect of a rule arises in two contexts: adverse impact on a

8 particular minority group and harm to the community generally by the perpetuation of

9 segregation.”); Metro. Hous. Dev. Corp. v. Vill. of Arlington Heights, 558 F.2d 1283, 1290 (7th

10 Cir. 1977) (Arlington Heights II) (“There are two kinds of racially discriminatory effects which a

11 facially neutral decision about housing can produce. The first occurs when that decision has a

12 greater adverse impact on one racial group than on another. The second is the effect which the

13 decision has on the community involved; if it perpetuates segregation and thereby prevents

14 interracial association[,] it will be considered invidious . . . .”).

15

Cases brought in the employment context generally rely on the latter theory, e.g., that an

16 employment test under-selects minorities and thus causes fewer minorities to be hired or

17 promoted. See, e.g., Griggs, 401 U.S. at 428-49 (“general intelligence test” and high school

18 requirement disproportionately excluded blacks seeking promotions from coal handling

19 department); Stout v. Potter, 276 F.3d 1118, 1122 (9th Cir. 2002). The statistical showing

20 required in such cases is rigorous because its purpose is to establish causation. Stout, 276 F.3d at

21 1122 (“Although statistical data alone, in a proper case, may be adequate to prove causation, the

22 statistical disparities must be sufficiently substantial that they raise such an inference of

23 causation.”) (internal quotations and citations omitted).

24

By contrast, in cases like the current one that are brought on the first theory, statistics play

25 a very different role. Information about the racial make-up of the affected population in such

26 cases goes to the issue of disproportionality, not causation. Thus, in Garcia v. Spun Steak Co.,

27 998 F.2d 1480 (9th Cir. 1993), the Ninth Circuit found an employer’s English-only policy to have

28 a disproportionate impact where the “vast majority of those workers . . . who speak a language

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1 other than English – and virtually all those employees for whom English is not a first language – 2 are Hispanic.” Id. at 1486.19 As a result, while there was no argument that the employer’s policy

3 caused any racial imbalance in its workforce, the effects of that policy “will be suffered

4 disproportionately by those of Hispanic origin.” Id. In such a case, the Ninth Circuit explained,

5 “[i]t is of no consequence that not all Hispanic employees of Spun Steak speak Spanish; nor is it

6 relevant that some non-Hispanic workers may speak Spanish.” Id. In other words,

7 disproportionality is established where the “vast majority” of the affected population is minority.

8 This is so even if some minorities are not affected and some whites are affected. See also Powell

9 v. Ridge, 189 F.3d 387, 396 (3d Cir. 1999) (rejecting argument in disparate impact challenge to

10 state’s funding formula for school districts that plaintiffs’ claim defeated where “there are some

11 white students in the allegedly disadvantaged minority school districts and some non-white

12 students in the allegedly advantaged white school districts”), overruled on other grounds, 13 Alexander v. Sandoval, 532 U.S. 275 (2001).20

14

Similarly, in Keith v. Volpe, 858 F.2d 467 (9th Cir. 1988), the Ninth Circuit found a city’s

15 refusal to approve a low and moderate income housing project to have a disparate effect where

16 two-thirds of the persons who would have benefited from the project were minorities. Under

17 these circumstances, “[t]he failure to build the project had twice the adverse impact on minorities

18 as it had on whites. This showing established a racially discriminatory effect.” Keith, 858 F.2d at

19 484 (citations omitted). As in Garcia, the court found disproportionality because minorities made

20 up the majority of the adversely affected population.

21

22 19

Garcia found that, although the impact of the policy was disproportionate, bilingual

23 employees could not establish a prima facie case because the English-only policy was not

“adverse” as to them. The court remanded the case in light of a material fact dispute over

24 whether limited English proficient employees were adversely impacted. Id. at 1490.

25

20 The Supreme Court held in Alexander, contrary to the Third Circuit’s procedural ruling in Powell, that there is no private right of action under Title VI disparate impact regulations.

26

Alexander, 532 U.S. at 293. This motion focuses on one of Plaintiffs’ claims, brought under state law, which provides a cause of action for disparate impact discrimination. See Cal. Gov. Code

27

§§11135, 11139; 22 Cal. Code Regs. §98101. Alexander did not reach the issue of the substantive analysis used in disparate impact claims, and thus does not call into question Powell

28 on this point.

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1

B. Plaintiffs Have Established A Prima Facie Case Of Disparate Impact Because

MTC’s Facially Neutral Practice Of Failing To Fund Operating Shortfalls

2

Causes a Disproportionate Adverse Impact On Racial Minorities.

3

Of multiple practices of MTC that, while neutral on their face, have a significant adverse

4 impact on racial minorities, Plaintiffs focus here on MTC’s habitual failure to fund the shortfalls

5 in operating revenues that affect the ability of AC Transit, but not BART or Caltrain, to continue

6 to operate its existing level of service. Plaintiffs do not contend that MTC’s practice causes AC

7 Transit’s ridership to be heavily minority. Instead, they contend that this practice has an adverse

8 impact on AC Transit’s disproportionately minority riders. The undisputed facts establish a

9 prima facie case of disparate impact discrimination.

10

MTC’s failure to fund AC Transit’s operating shortfalls has caused AC Transit to cut

11 service. MTC has acknowledged that unfunded shortfalls lead to service cuts. E.g., Marcantonio

12 Decl., Exh. 4 at 211-12; id., Exh. 12 at 384-85. By choosing not to provide AC Transit with the

13 funds needed to cover its operating shortfalls, MTC has forced AC Transit to fill the gap by

14 cutting service. See supra, Part II-B-5. The impact on Plaintiffs and the Class of minority AC

15 Transit riders of the resulting service cuts is adverse because it severely impairs their overall

16 mobility and ability to access employment, doctors, and other critical destinations. See supra,

17 Part II-A-1. And finally, the effect of MTC’s practice is racially disproportionate. As MTC’s

18 own statistical expert acknowledges, AC Transit’s minority ridership is 78%, the highest of any

19 transit agency in the Bay Area. Marcantonio Decl., Exh. 46 at 10. Because AC Transit riders are

20 nearly four times more likely to be minority than not, actions that adversely affect AC Transit’s

21 ridership have a racially disproportionate effect. See Keith, 858 F.2d at 484.

22

1. MTC Fails To Fund Operating Shortfalls, Leaving AC Transit With

23

Insufficient Revenue To Preserve Its Existing Service Levels

It is undisputed that MTC has consistently engaged in the “outwardly neutral” practice, 24

Gamble, 104 F.3d at 306, of failing to fund operating shortfalls in its RTPs. 25

As described above, one of MTC’s principal responsibilities as the region’s MPO is to 26

prepare and adopt the region’s long-range transportation plan, or RTP. The RTP must be fiscally 27

constrained, 23 U.S.C. §134(g)(2)(B) (1998), and must “emphasize the preservation of the 28

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1 existing transportation system.” 23 U.S.C. §134(h)(1)(H). As a result, it is a primary statutory

2 objective of the RTP’s financial plan both to “identif[y]” shortfalls in revenues needed to

3 maintain and operate the existing transportation system and to “cover” those shortfalls. 23 C.F.R.

4 §450.322(b)(11) (1997). In the third step of its four-step process for preparing the RTP (see

5 supra, Part II-B-2-b), MTC identifies transit shortfalls for both capital rehabilitation and

6 operations. The total shortfall, including both capital and operating elements, must be funded in

7 order to operate and maintain existing service levels. Rubin Decl. at ¶22. In the last step of its

8 RTP process, in which MTC assigns revenues to cover shortfalls, however, it has been MTC’s

9 consistent practice to fund capital rehabilitation shortfalls – in the amount of several billion

10 dollars – while leaving operating shortfalls entirely unfunded. See supra, Part II-B-5.

11

Pursuant to this facially neutral practice, MTC left entirely unfunded AC Transit’s

12 persistent operating shortfalls – $136.151 million in the 1998 RTP, $36.7 million in the 2001

13 RTP, and at least $64.355 million in the 2005 RTP. Marcantonio Decl., Exh. 22; Rubin Decl. at

14 ¶37 & Exh. 1 at ¶95. As described above, these figures substantially understate the full

15 magnitude of the shortfalls that MTC left unfunded, since they are not measured against a

16 constant “baseline.” See supra, Part II-B-3. The 2005 RTP, fails to take account of a very

17 significant reduction in AC Transit bus service that occurred in 2005; taking that reduction into

18 account, AC Transit’s total operating shortfall for the 2005 RTP period is not $64.355 million, as

19 MTC reported, but instead well over half a billion dollars. Rubin Decl. at ¶¶34-35, 39 & Exh. 2

20 at ¶¶95-98.

21

While consistently failing to assign a single dollar to cover AC Transit’s RTP operating

22 shortfalls, MTC has chosen to direct billions of dollars to cover capital rehabilitation shortfalls, 23 enabling BART and Caltrain to maintain their “baseline” levels of service.21

24

Both operating and capital rehabilitation costs are needed to preserve existing service.

25 However, because rail systems are inherently more capital-intensive than bus systems, MTC’s

26 21

Indeed, since capital rehabilitation needs grow as rail service expands and MTC has

27

poured billions of dollars in capital expansion projects for BART and Caltrain, Rubin Decl., Exh. 1 at ¶¶98-99; Marcantonio Decl., Exh. 16 at 794, MTC’s practice actually enables them to

28 increase their “baselines.”

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1 preference for funding capital rehabilitation over operating costs inherently prioritizes

2 preservation of rail systems over bus systems. The relevant measure is the extent to which MTC

3 funds the total shortfalls of the respective operators in system preservation costs (i.e., operating

4 plus capital rehabilitation). By that measure, MTC has covered only 45.1% of AC Transit’s total

5 shortfall, as compared to 75% of BART’s and Caltrain’s (1998 RTP); only 83.7% of AC Transit’s

6 total shortfall, as compared to 100% of BART and Caltrain’s (2001 RTP); and only 14.02% of

7 AC Transit’s total shortfall, as compared to 43.6% of BART’s in the 2005 RTP. Rubin Decl., 8 ¶¶37-39 & Exh. 1 at ¶95; id., Exh. 2 at ¶102. See supra, Part II- B-4.22

9

2. MTC’s Practice Of Failing To Provide AC Transit With Funds To Cover Its

Operating Shortfalls Causes AC Transit To Cut Service Levels 10

It is undisputed that MTC’s consistent refusal to fund AC Transit’s operating shortfalls

11

forces, and repeatedly has forced, AC Transit to cut service. See supra, Part II-B-5.

12

The fact that MTC does not itself provide transit services does not absolve MTC of

13

responsibility or liability for the consequences of its funding practices. Under well-established

14

causation principles, a defendant that is not the last link in the chain of causation is nonetheless

15

liable for the discriminatory effects of its practices. In Powell v. Ridge, the Third Circuit

16

addressed the elements of a disparate impact challenge to Pennsylvania’s formula for funding

17

school districts. Pennsylvania’s funding formula directly affected school districts, not students.

18

Nevertheless, the court held that plaintiffs could establish a claim of discrimination against the

19 22

MTC engages in numerous other discriminatory practices that Plaintiffs intend to

20 challenge at trial, but that are not the subject of this motion. For example, in the third step of the

financial planning for the RTP, in which MTC assigns revenues to costs and identifies shortfalls,

21 MTC projects anticipated revenues for operating and capital rehabilitation needs based on its

funding policies – policies which in many instances prevent funds from being used for operating

22 purposes even though they are statutorily eligible for such use. By artificially limiting the pool of

operating funds through its funding policies, MTC effectively creates the operating shortfalls that

23 it has consistently identified in AC Transit’s budget. Rubin Decl. at ¶27 & Exh. 1 at ¶¶21, 115-

58. In addition, MTC’s fourth RTP step involves not only the assignment of revenues to existing

24 system needs but also the assignment of revenues to system expansion. MTC has devoted

billions of dollars to expand BART and Caltrain service levels while failing even to preserve

25 existing levels of AC Transit service. Rubin Decl., Exh. 1 at ¶¶98-99. Furthermore, MTC

disenfranchises minority communities by failing to engage in a meaningful public participation

26 process, as it is required to do, 23 C.F.R. §450.212, and intentionally papers over inequities in its

funding decisions by using an “equity analysis” that is designed to mask inequities between

27 minority populations and other populations. Sanchez Decl., Exh. 1 at 5-7. Plaintiffs’ motion for

summary adjudication does not address these and other discriminatory practices, and instead

28 focuses only on the disparate adverse impact of MTC’s failure to fund operating shortfalls.

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1 state if they proved that “the effect” of the state’s funding practices was to limit their educational

2 opportunities. Powell, 189 F.3d at 396; see also Robinson v. Kansas, 117 F. Supp. 2d 1124, 1141

3 (D. Kan. 2000) (where plaintiffs claimed harms such as disproportionately high dropout rates

4 based on state’s funding formula to school districts, disparate impact claim was stated by

5 allegation that such harms “are caused by the way the State funds the school districts”) (emphasis

6 in original), aff’d on other grounds, 295 F.3d 1183 (10th Cir. 2002); cf. also Bennett v. Spear, 520

7 U.S. 154, 169 (1997) (causation for Article III standing does not require “defendant’s actions [to

8 be] the very last step in the chain of causation”; although “injury complained of” cannot be

9 “result of the independent action of some third party,” causation established if it results from a

10 “determinative or coercive effect” by defendant) (emphasis in original) (internal quotations and

11 citations omitted).

12

An operating shortfall by definition measures the amount of funds an operator lacks to

13 continue operating its existing level of service. MTC’s practice of not funding operating

14 shortfalls in the RTP has left AC Transit with no choice but to close its recurring budgetary gap

15 with service cuts. Indeed, MTC has long acknowledged that unfunded operating shortfalls

16 translate into service reductions. See, e.g., Marcantonio Decl., Exh. 54 at 60 (“Transit Baseline

17 operating shortfalls . . . are left unfunded [in the 1994 RTP]. . . . Consequently, service reductions

18 are assumed to account for significant shortfalls.”); id. at 63 (shortfall in transit operating funds

19 “has required a projected 5 percent service cutback from planned service levels for,” inter alia, 20 “AC Transit”); see also supra, Part II-B-5.23 Over the 12-year period during which MTC

21 prepared and adopted its last four RTPs, AC Transit’s persistent unfunded operating shortfalls

22 caused AC Transit riders to experience a 9.6% decline in service levels. During this same period,

23 MTC channeled billions of dollars to fund capital rehabilitation shortfalls, and BART and

24

25

23 In theory, AC Transit could also address funding shortfalls by a combination of cuts in service levels and fare increases. The evidence demonstrates that AC Transit has cut service

26

levels. See supra, Part II-A-3. To the extent its unfunded operating shortfalls also force it to increase fares, such an outcome also harms Plaintiffs and the Class. Even modest increases in

27

transportation costs leave less money for food, utilities, and other life necessities. See supra, Part II-A-1. In short, MTC forces AC Transit to take actions that harm its riders. Whatever choice

28 AC Transit has in the matter is only a choice between harms.

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1 Caltrain riders benefited from service level increases of 48.2% and 80.4%, respectively. Rubin

2 Decl. at ¶11 & Exh. 1 at ¶103.

3

The RTP process highlights MTC’s role in forcing AC Transit to cut service. Federal law

4 requires MTC to produce a fiscally-constrained RTP in which shortfalls are “covered.” See 23

5 C.F.R. §450.322(b)(11) (1997). Thus, as both Plaintiffs’ and Defendant’s experts agree, if an

6 MPO does not fund a shortfall in a project or program, there is only one alternative: to cut that

7 project or program. Marcantonio Decl., Exh. 44 at 17-18, ¶1; Rubin Decl. at ¶¶16, 23 & Exh. 1 at

8 ¶80; id., Exh. 2 at ¶15. Federal guidance makes this explicit, noting that once an MPO identifies

9 a shortfall it must “[m]odify the program to eliminate or reschedule projects and/or develop new

10 funding sources to implement priority projects.” Marcantonio Decl., Exh. 8 at 19. Fiscal

11 constraint means that “if MTC is not going to provide the necessary funding to cover AC

12 Transit’s operating shortfall, it must ensure that AC Transit cuts service, at least to the extent that 13 fare increases do not cover that shortfall.” See Rubin Decl. at ¶40 & Exh. 2 at ¶20.24

14

Powell makes clear that a claim of disparate impact discrimination is established where a

15 defendant’s funding practices have “the effect” of harming the plaintiffs, even if the plaintiffs are

16 not the direct recipients of the funds at issue. 189 F.3d at 396. Here, the undisputed evidence

17 demonstrates that “the effect” of MTC’s funding practices – in particular, its refusal to fund AC

18 Transit’s operating shortfalls – has been cuts in the service levels that AC Transit is able to

19 deliver to Plaintiffs and the Class. Indeed, MTC’s failure to fund AC Transit’s operating

20 shortfalls has the “determinative or coercive effect” of forcing AC Transit to cut service. Bennett,

21 520 U.S. at 169. Under these circumstances, there can be no doubt that MTC has caused the

22 harmful reductions in service levels experienced by Plaintiffs and the Class.

23 24

MTC expert Prof. Cervero agrees that the shortfalls that MTC leaves unfunded in the RTP

24

prompt operators to cut service. Marcantonio Decl., Exh. 44 at 17-18. He then goes on to argue that this result is a good thing because it forces operators to cut “unproductive service.” Id. at 17-

25

18, 24-28. This argument addresses the question, not presented on this motion for summary adjudication, of whether MTC’s practice is justified by a business necessity. Moreover, his

26

assertion is factually unsupported, as MTC has never determined that any of the service AC Transit has cut is “unproductive.” See Rubin Decl., Exh. 2 at ¶¶157-169. MTC expert Cervero

27

himself acknowledges that it is “possible that a deficit could be so large that unproductive and productive services are cut.” Marcantonio Decl., Exh. 43 at 113; see id. at 57-58, 111-12 (Prof.

28 Cervero did not study whether services cut by AC Transit were unproductive).

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1

3. The Impact Of MTC’s Failure To Cover AC Transit’s Operating Shortfalls Is

Adverse

2

3

There is no dispute that the impact of these service level reductions is “adverse.”

4 Service cuts dramatically and negatively affect Plaintiffs and the Class of minority AC Transit

5 riders, as these riders use AC Transit service to get to work and for a broad range of other critical

6 life needs, such as getting to college classes, the grocery store, the doctor, and other essential

7 destinations. In fact, virtually none of the opportunities our society has to offer are available to

8 those who lack the mobility to access them. When AC Transit service is cut, its

9 disproportionately minority riders are severely impaired in their overall mobility. For example,

10 service reductions have forced Ms. Darensburg to walk through unsafe areas to get home or visit

11 her daughter and deprived her of a direct route to downtown Oakland. Service cuts have also

12 created difficulties for Ms. Hain and her family in getting to college and elementary school

13 classes. See supra, Part II-A-1. This denial of equal transit opportunities is precisely the type of

14 harm the prohibitions against discrimination by recipients of public funding were intended to

15 prevent. See Powell, 189 F.3d at 395 (disparate impact claim established where plaintiffs can

16 show that, inter alia, funding disparities “limit[] the[] educational opportunities” of minority

17 students); see also De La Cruz v. Tormey, 582 F.2d 45, 53 (9th Cir. 1978) (discriminatory effect 18 alleged based on denial of “educational opportunity” on the basis of sex);25 United Farmworkers

19 of Fla. Hous. Project, Inc. v. Delray Beach, 493 F.2d 799, 808 (5th Cir. 1974) (city’s refusal to 20 provide water and sewer services appropriate subject of discrimination suit).26

21

22 25 Although De La Cruz raised an equal protection claim, the Ninth Circuit examined whether plaintiffs had established, as one element of that claim, a “discriminatory effect,” and
23 relied on Title VI and Title VII disparate impact cases in concluding that they had. 582 F.2d at 51-52 (citing Griggs v. Duke Power Co., 401 U.S. 424 (1971) (Title VII), Lau v. Nichols, 414
24 U.S. 563 (1974) (Title VI), and Dothard v. Rawlinson, 433 U.S. 321 (1977) (Title VII)).

25

26 As noted above, see supra note 23, to the extent the operating shortfalls that MTC leaves unfunded in the RTP force AC Transit to raise fares (whether in place of service cuts, or in

26

conjunction with cuts), such an outcome is also adverse. It inflicts an economic harm on Plaintiffs and the Class. Cf. D.Ct. Order (Doc. No. 33) at 6:20-21 (“excessive fares” establish

27

“personal economic harm”). And in the case of low-income riders like Plaintiffs Darensburg and Hain, the effect is particularly stark as increased transportation costs mean less money for food

28 and other life necessities. See supra Part II-A-1.

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1

4. The Impact Of MTC’s Failure To Cover Transit Operating Shortfalls Falls

Disproportionately On Minority Riders.

2 Finally, there is no dispute that AC Transit’s service level reductions have a

3 disproportionate effect on minorities, because MTC’s own demographic survey establishes that

4 AC Transit’s ridership is overwhelmingly minority.

5 As noted above, “[t]here are two kinds of racially discriminatory effects which a facially

6 neutral decision . . . can produce.” Arlington Heights II, 558 F.2d at 1290. Plaintiffs here

7 contend that MTC’s consistent failure to cover AC Transit’s operating shortfalls has a

8 disproportionate adverse effect on minorities. That being so, Plaintiffs need only demonstrate

9 that the majority of AC Transit’s riders – the affected population – is minority, in order to

10 establish disproportionality. Keith, 858 F.2d at 484; Garcia, 998 F.2d at 1486. Seventy-eight

11 percent of AC Transit’s ridership is minority. Marcantonio Decl., Exh. 46 at 10. This is

12 substantially in excess of the two-thirds minority population found by the Court in Keith to

13 establish disproportionality of impact. 858 F.2d at 484. Because the “vast majority” of AC

14 Transit’s ridership is minority, minorities are “disproportionately impacted” by MTC’s practice.

15 Garcia, 998 F.2d at 1486.

16

17

IV. CONCLUSION

18

For the foregoing reasons, Plaintiffs have established a prima facie case of disparate

19 impact discrimination, in violation of California Government Code Section 11135 and its
20 implementing regulations, with regard to MTC’s practice of funding transit capital shortfalls, but
21 not operating shortfalls, in its Regional Transportation Plans. Therefore, this Court should grant
22
23 Plaintiffs’ motion for summary adjudication.

24

25

26

27

28

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Case3:05-cv-01597-EDL Document175 Filed04/01/08 Page35 of 38

1 Dated: April 1, 2008 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLTFS’ MPA ISO MOTION FOR SUMMARY ADJUDICATION
Case No. C-05-1597-EDL

LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C.

By:

/s/

Bill Lann Lee

Bill Lann Lee Margaret Hasselman LEWIS, FEINBERG, LEE, RENAKER & JACKSON, P.C. 1330 Broadway, Suite 1800 Oakland, CA 95612-2519 Telephone: (510) 839-6824 Facsimile: (510) 839-7839

Kelly Dermody Daniel M. Hutchinson LEIFF, CABRASER, HEIMANN & BERNSTEIN, LLP Embarcadero Center West 275 Battery Street, Suite 3000 San Francisco, CA 94111-3339 Telephone: (415) 956-1000 Facsimile: (415) 956-1008

Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Class; and Plaintiff Communities for a Better Environment

Peter D. Nussbaum Daniel T. Purtell Linda Lye ALTSHULER BERZON LLP 177 Post Street, Suite 300 San Francisco, CA 94108 Telephone: (415) 421-7151 Facsimile: (415) 362-8064

Attorneys for Plaintiff Amalgamated Transit Union Local 192

26

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
PLTFS’ MPA ISO MOTION FOR SUMMARY ADJUDICATION
Case No. C-05-1597-EDL

Richard A. Marcantonio Guillermo Mayer Elisabeth Voigt Angelica K. Jongco PUBLIC ADVOCATES, INC. 131 Steuart Street, Suite 300 San Francisco, CA 94105 Telephone: (415) 431-7430 Facsimile: (415) 431-1048 Grant P. Fondo Melina Patterson Jessica Valenzuela Santamaria Heather Dunn Navarro COOLEY GODWARD KRONISH LLP 5 Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 Telephone: (650) 843-5000 Facsimile: (650) 857-0663 Attorneys for Plaintiffs Sylvia Darensburg, Vivian Hain, and the Class Adrienne L. Bloch COMMUNITIES FOR A BETTER ENVIRONMENT 1440 Broadway, Suite 701 Oakland, CA 94612 Telephone: (510) 302-0430 Facsimile: (510) 302-0438 Attorneys for Plaintiff Communities for a Better Environment
27

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ATTACHMENT A

Case3:05-cv-01597-EDL Document175 Filed04/01/08 Page38 of 38

 
 Case3:05-cv-01597-EDL Document177 Filed04/22/08 Page1 of 29

HANSON BRIDGETT LLP KIMON MANOLIUS - 154971 2 JULIA H. VEIT - 209207 WARREN WEBSTER - 209540 3 ADAM W. HOFMANN - 238476 425 Market Street, 26th Floor 4 San Francisco, CA 94105 Telephone: (415) 777-3200 5 Facsimile: (415) 541-9366 krnanolius@hansonbridgett.com
6 FRANCIS F. CHIN - 05923 I
7 CYNTHIA E. SEGAL - 179636 Metropolitan Transportation Commission
8 Joseph P. Bort Metrocenter 101 8'" Street
9 Oakland, Ca 94607-4700 Telephone: (510) 817-5700
10 Facsimile: (510) 464-7848 fchin@mtc.ca.gov
11 Attorneys for Defendant
12 . METROPOLITAN TRANSPORTATION COMMISSION

1.3

UNITED STATES DISTRICT COURT

14

FOR THE NORTHERN DISTRICT OF CALIFORNIA

15

16 SYLVIA DARENSBURG, VIRGINIA MARTINEZ, and VIVIAN HAIN;
17 individuals on behalf of themselves and all others similarly situated;
18 AMALGAMATED TRANSIT UNION 192; COMMUNITIES FOR A BETTER
19 ENVIRONMENT,

20

Plaintiffs,

21

v.

No. C 05 01597 EDL
DEFENDANT'S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, PARTIAL SUMMARY JUDGMENT AGAINST PLAINTIFFS AMALGAMATED TRANSIT UNION, LOCAL 192 AND COMMUNITIES FOR A BETTER ENVIRONMENT; MEMORANDUM OF POINTS AND AUTHORITIES

22 METROPOLITAN TRANSPORTATION COMMISSION,
23 Defendant.
24
25

Fed. R. Civ. P. 56
Date: June 24, 2008 . Time: 9:00 a.m. Judge: Hon. Elizabeth D. LaPorte Crtrm: E, 15th Floor

26

27

28

NOTICE OF MOT. AND MOTION FOR SUMM. JUDGMENT AGAINST PLAINTIFFS ATU AND CBE; POINTS AND AUTHORITIES; Case No. C 05 01597 EDL

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.TABLE OF CONTENTS

2
3 I. 4 11.
5 6 7
111.
8 IV. 9 10
11
12 13 14 15 16 17
18 19
20 21
22
23 24 25
26
27 V.

Page

INTRODUCTION .............................................................................................................. 2

FACTUAL BACKGROUND ............................................................................................. 3

A. The Amalgamated Transit Union, Local 192.......................................................... 3

B. Communities for a Better Environment .................................................................. 4 C. The 2005 Regional Transportation Plan ................................................................. 5

D. CBE Waived Any Claims Related To The 2005 RTP .....................................:...... 6

PROCEDURAL BACKGROUND ..................................................................................... 8

LEGAL ARGUMENT ........................................................................................................ 9

A. Legal Standard on Summary Judgment for Lack of Standing .............................,.. 9
B. The Organizational Plaintiffs Lack -Standing to Assert the Causes of Action
Raised in the SAC ................................................................................................. 10

I. The Organizational Plaintiffs Lack Standing to Assert These Claims on Behalf of Their Members ..................................................................... 11

a.

The individual members of the Organizational Plaintiffs

lack standing to assert the causes of action ra}sed in the SAC ..... 11

h. The rights at issue in the SAC are not gennane to the organizational purposes of either ATU or CBE ............................ 12

(I) Promoting allocation of public transportation funding to a specific transit operator, at the expense ofthe other transit operators in specific minority communities, is not gennane to ATU' s
organizational purpose ...................................................... 12

(2) Promoting allocation of public transportation funding to increase access to public transportation in specific minority communities is not germane to CBE's organizational purpose............'............................... 15

2. Organizational Plaintiffs Lack Standing to Assert. These Claims on Their Own Behalf...................................................................................... 17

a.

Organizational Plaintiffs lack standing to assert claims in

their own right because there is no evidence that they have.

suffered an "injury in fact"............................................................ 18

h. Organizational Plaintiffs lack standing to assert claims on the basis of violations of the rights of third parties ....................... 19

C. Legal Standard on Partial Summary Judgment ..................................................... 21

D. The Applicable Statute Of Limitations Limits The Bases For CBE's Claims...... 21

E. CBE Is Barred From Bringing Those Paris Of Its Claims Based Upon MTC's Preparation, Development, and Adoption of the 2005 RTP ..................... 22

CONCLUSION ................................................................................................................. 25

28
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1

TABLE OF AUTHORITIES

2

3 Cases

4 Appalachian Ins. Co. v. McDonnell Douglas Corp.,

5

214 Cal.App.3d 1 (Cal. Ct. App. 1989) ..................................................................................... 22

Boating Indus. Ass 'n v. Marshall,

6

601 F.2d 1376 (9th Cir. 1979).............................................................................................. 10,20

7

Cholla Ready Mix, Inc. v. Chivish, 382 F.3d 969 (9th Cir. 2004) ...................................................................................................... 21

8 Church Mut. Ins. Co. v. United Slates Liability Ins. Co.,

347 F. Supp. 2d 880 ................................................................................................................... 21

9 Craig v. Boren,

10

429 U.S. 190 (1976) ................................................................................................................... 20

Doe v. Bollon,

11

410 U.S. 179 (1973) ................................................................................................................... 20

12

Duke Power Co. v. Carolina Environmental Study Group, 438 U.S. 59 (1978) ..................................................................................................................... 19

13 Edwards v. Comstock Ins. Co.,

205 Cal.App.3d 1164 (Cal. Ct. App. 1988) ............................................................................... 22

14 EnVlI. Prot. Info. Clr. v. Pac. Lumber Co.,

15

469 F. Supp. 2d 803 (N.D. Cal. 2007) ....................................................................................... 10

Epileptic Foundation v. City and County ofMaui,

16

300 F. Supp. 2d 1003 (D. Haw. 2003) ....................................................................................... 19

17

FMC Corp. v. Venda Co., 196.F. Supp.2d 1023 (E.D. Cal. 2002) ....................................................................................... 21

18 Friends ofthe Earth Inc. v. Laidlaw Envtl. Servs. Inc.,

528 U.S. 167............................................................................................................................... 11

I

19 FWIPBS, Inc. v. Dallas,

20

493 U.S. 215 (1990) ................................................................................................................... 10

I
I .

Griswold v. Connecticut,

21

381 U.S. 479 (1965) ................................................................................................................... 20

22

Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982) ................................................................................................................... 18

23 Hunt v. Washington Slale Apple Adver. Camm 'n,

432 U.S. 333 (1977) ................................................................................................................... 11

24 Idaho Farm Bureau Fed'n v. Babbitt,

25

900 F. Supp. 1349 (D. Idaho 1995)............................................................................................ 16

Lujan v. Defenders afWildlife,

26

504 U.S. 555 (1992) ............................................................................................................. 10, 18

27

Lujan v. Defenders afWildlife, 504 U.S. at 560 ........................................................................................................................... 10

28

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1

TABLE OF AUTHORITIES

(continued)
2

i

3 McNutt v. General Motors Acceptance C01p.,

298 U.S. 178 (1936) ................................................................................................................... 10

4 Pierce v. Society a/Sisters,

5

268 U.S. 510 (1925) ................................................................................................................... 20

I
l
I

Project Sentinel v. Evergreen Ridge Apartments,

6

40 F. Supp. 2d 1136 (N.D. Cal. 1999) ..............................................................................,........ 18

7

Robi v. Five Platters, Inc., 918 F.2d 1439 ............................................................................................................................ 21

8 Safe Airfor Everyone v. Meyer,

373 F.3d 1035 (9th Cir. 2004) .................................................................................................... 10

9 Sierra Club v. Morton,

10

405 U.S. 727 (1972) ................................................................................................................... 10

Spencer v. Kemna,

11

523 U.S. 1 (1998) ....................................................................................................................... 10

12

Taylor v. The Regents oJthe Unlv. a/California, 993 F.2d 710 (9th Cir. 1993)...................................................................................................... 21

13 Warth v. Seldin,

.

422 U.S. 490 (1975) ................................................................................................... 9, 11, 19,20

14 Winet v. Price,

15

4 Cal.App.4th 1159 (Cal. Ct. App. 1992) ............................................................................ 22, 23

Statutes

16

Cal. Civ. Code § 1638 ....................................................................... :............................................ 22

17 California Code ofCivii Procedure

18

§335.1 ........................................................................................................................................ 21 § 1021.5 ........................................................................................................................................ 9

19 Cal. Gov. Code

§ 11135 ......................................................................................................................... 6,8,19,21

20

§ 65080............................................................................................................................... 5,6,24

21 Other Authorities

22 42 U.S.C. § 1983 .............................................................................................................................. 5 42 U.S.c. § 1988 .............................................................................................................................. 9
23 42 U.S.C. § 2000d .................................................................................................................. 6, 8, 19

24 49 U.S.C. § 5303 ........................................................................................................................ 6, 24

25 . Federal Practice and Procedure (3d ed. 1998), § 2737 .................................................................. 21

Rules 26
Fed. R. Civ. P. 56 ........................................................................................................................... 21 27

28
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1

NOTICE OF MOTION AND MOTION

2 TO ALL PARTlES AND TO THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on June 24, 2008, at 9:00 a.m. in Courtroom E, 15th Floor

4 ofthe above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, California,

5 Defendant Metropolitan Transportation Commission ("Defendant" or "MTC"), through its

6 attorneys, Hanson Bridgett LLP, will and hereby does move this Court for summary judgment or,

7 in the alternative, partial summary judgment in its favor in this action brought by Plaintiffs

8 Amalgamated Transit Union, Local 192 ("ATU") and Communities for a Better Environment

9 ("CBE").

10

This motion is made on the grounds that, as a matter oflaw, ATU and eBE (collectively,

11 "Organizational Plaintiffs") lack standing to pursue the claims raised in their Second Amended

12 Complaint, and this Court lacks subject matter jurisdiction over the Organizational Plaintiffs'

13 claims as a result. In the alternative, to the extent that CBE is found to have standing, MTC

14 moves for partial summary judgment against CBE on the grounds that CBE is barred from

15 pursuing any part of its claims raised to the extent that they are related to the 2005 Regional

16 Transportation Plan because CBE entered into a prior settlement agreement and release with

17 MTC by which it waived its right to these claims. Accordingly, CBE is entitled to partial

18 summary judgment.

19

This motion will be and hereby is based on this Notice of Motion and Motion (including

20 the supporting Memorandum of Points and Authorities); the Declarations of Adam W. Hofmann

21 and Therese McMillan filed herewith, all pleadings and papers on file in this action any other

22 matters of which judicial notice may be taken by the Court, and upon such oral argument and

23 documentary evidence as may be presented at or before the hearing.

24
25
26
27
28
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I

I.

INTRODUCTION

2

Article III of the U.S. Constitution both establishes the power of the federal courts and

3 limits that power to the adjudication of "cases" and "controversies." Under this "case or

4 controversy" requirement of Article III, federal courts may only hear claims asserted by plaintiffs

5 with a sufficient stake in the litigation to ensure that there is a proper controversy, zealously

6 advocated, and requiring judicial resolution. Accordingly, the Constitution requires that plaintiffs

7 demonstrate that they have "standing" to invoke the jurisdiction of a federal court, that is, that the

8 piaintiffhas suffered an injury, caused by the defendant, and redressable by a favorable court

9 order. These constitutional principles have also given rise to "prudential" standing limitations,

10 generally refusing to permit an individual to predicate standing on the constitutional or statutory

II rights of others. If, as is the case here, a plaintiff cannot demonstrate that he or she satisfies both

12 the constitutional and prudential requirements for standing, the court has no jurisdiction to hear

13 the plaintiffs claims, and those claims must be dismissed.

14 Plaintiffs Amalgamated Transit Union, Local 192 ("ATU") and Communities for a Better

15 Environment (''CBE'') seek equitable reHefagainst Defendant Metropolitan Transportation

16 Commission ("MTC"), alleging that MTC has discriminated against minority riders of the

17 Alameda and Contra Cost County Transit District ("AC Transit"). ATU and CBE (collectively

18 "Organizational Plaintiffs") allege that MTC provides more funding to certain other transit

19 service providers, the Bay Area Rapid Transit District C'BART") and the Peninsula Corridor Joint

20
Powers Board ("Caltrain"), which serve communities with a higher percentage of white residents

21 than the communities served by AC Transit. Organizational Plaintiffs purport to represent the

22 interests of their members, some of whom are minority riders of AC Transit. Organizational

23 Plaintiffs also claim that they have been injured in their own right; they allege that MTC's actions

24 force them to allocate resources to related advocacy, rather than to other matters.

25
MTC strenuously disputes Organizational Plaintiffs' claims. They are completely

26
unfounded and, worse yet, seek remedies that will be deleterious to the communities they purport

27 to serve. Regardless, even ifMTC's funding actions were the result of some misplaced racial

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1 animus, Organizational Plaintiffs would not be the proper parties to assert those claims and, thus,

2 do not have standing to invoke the Court's jurisdiction. This is, in fact, an excellent illustration of

3 the importance of the standing limitations, a case in which the parties and motives driving

4 litigation are disconnected from the interests of t~e third parties the litigants claim to represent.

5 As a result, the Court lacks jurisdiction over their claims and must dismiss them.

6

Moreover, in 2004, CBE entered into a settlement agreement (the "Agreement") with

7 MTC in which it waived its right to bring any future claims related to MTC's 2005 Regional

8 Transportation Plan ("2005 RTP"). Nevertheless, CBE now brings three causes of action against

9 MTC which are necessarily based upon MTC's transportation funding plans and policies that

10 . MTC made in its preparation, development, and adoption of the 2005 RTP. CBE is barred from

11 bringing these claims to the extent they are based on the 2005 RTP as a matter law.

12

It is undisputed, and CBE concedes, that the RTP is the long range planning document by

13 which MTC identifies the pool of available transportation fundiJ,lg and plans how to allocate

14 those funds to the twenty plus transit agencies in the region. Accordingly, by entering into the

15 Agreement and waiving its right to bring any future claims related to the 2005 RTP, CBE

16 effectively waived its right to bring any future claims regarding MTC's planning decisions and

17 policies contained in the 2005 RTP. Because CBE's claims within the actionable period in this

18 lawsuit are based upon MTC's planning and policy decisions contained in the 2005 RTP, and the

19 adoption or development thereof; it is precluded from bringing any claims related thereto by the

20 Agreement. Accordingly, MTC is entitled to partial summary judgment as a matter of law against

21 CBE on any claim that relates to the RTP.

22

II. FACTUAL BACKGROUND

23 A. 24

The Amalgamated Transit Union, Local 192 ATU is a labor union associated with the AFL-CIO. (See Hofmann Decl. at ~ 3, Exh. A,

25 p.4.) As stated on its website, ATU represents transit workers, not only bus system employees,

26 but "subway, light rail, and ferry operators" as well. (See· Hofmann Decl. at ~ 4, Exh. B.) ATU

27 advocates on behalf of its membership in negotiations with employers, primarily in regard to

28 "wages, benefits, and 'working conditions." (See Hofinann Dec!. at ~ 5, Exh. C, p. 38: 16-21.)

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1 ATU's national "Constitution and General Laws" sets forth ATU's national "Objects," which

2 include promotion of the quality and efficiency of transit operation, expansion of employment

3 education, opportunities, compensation, and benefits, negotiation with employers, and reduction

4 in labor hours. (See Hofmann Decl. at ~ 6, Exh. D, p. 5.) As stated in its bylaws, ATU's

5 organizational objectives are (1) organization of employees; (2) charitable activities approved by'

6 and in the interests of the membership; (3) assistance of other labor organizations; (4)

7 encouragement among the membership to work for the cause of organized labor; (5) promotion of

8 candidates for public office who support organized labor; and (6) improvement in wages, hours,

9 and conditions of employment for members, their families, and working people. (See Hofmann

10 Dec!: at ~ 3, Exh. A, p. 4.) ATU is absolutely governed by its constitution and its by-laws. (See

1-1 Hofinann Dec!. at~ 5, Exh. C, p. 17:10-13.)

12

ATU's organizational activities and agendas are consistent with the purposes set forth in

13 ATU's foundational documents. As published on ATU's national website, "The ATU Agenda"

14 states, "Political Action - at the local, state, provincial, and federal levels - has always been a

15 priority for the ATU. Through legislative action the ATU has been able to fight for the rights of

16 transit and allied workers and suport [sic] whatthey do on the local level." (See Hofmann Decl.

17 at ~ 7, Exh. E.) As further examples, ATU publishes both state and federal legislative agendas. 18 (See Hofinann Dec!. at ~ 8, Exh. F; ~ 9, Exh. G.) These agendas both emphasize increasing

19 funding for public transportation generally, protecting the safety and security of its membership,

20 enhancing employee rights in the workplace, expanding access to healthcare, and generally

21 advancing the cause of working people. (See id.)

22 B. Communities for a Better Environment

23

CBE describes itself as "a social justke organization with a focus on environmental health

24 and justice." (See Hofmann Decl. at ~ 10, Exh. H.) "CBE works in urban communities in

25 Northern and Southern California among low-income African Americans, Latinos and other

26 nationalities who are bombarded by pollution from freeways, power plants, oil refineries,

27 seaports, airports, and chemical manufacturers." (See id.) According to CBE, "We believe in

28 building community power to help them achieve the basic human right to clean air, clean water,

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I and clean land and public space." (See id.) "The vision of[CBE] is to protect the earth and

2 human life for future generations." (See Hofmann Decl. at ~ 11, Exh.l.) CBE's activities in

3 Northern California are largely consonant with those stated purposes, specifically, addressing the

4 heavy environmental burden placed on the region's working-class communities and communities

5 of color by heavy industries like oil refineries, chemical plants, power facilities, and "heavy diesel

6 engine vehicles." (See Hofmann Decl. at ~ 12, Exh. 1.) CBE's list oflitigated cases includes

7 efforts to eliminate polluting industry from poor neighborhoods and to reduce or eliminate

8 introduction of polluting chemicals into the air and water supply. (See Hofmann Decl. at ~ 13,

9 Exh. K.) Other than the present matter, CBE's pending cases are comprised ofa list of the

10 following projects, "protecting children from dirty diesel," limiting neighborhoods in Richmond

11 where crematoria may operate, stopping the building of new power plants in areas with large poor

12 and minority populations, pursuing enforcement of clean water regulations, and working to limit

13 the building of new oil refineries and to reduce the pollution created by existing refineries. (See

14 Hofmann Decl. at ~ 14, Exh. L.)

15 C. 16

The 200S Regional Transportation Plan Every four years, MTC is required to adopt and submit an updated regional transportation

17 plan ("RTP") to the California Transportation Commission and the Department of Transportation.

18 See 23 U.S.C. § 134; 49 U.S.C. § 5303; Cal. Gov. Code § 65080. The RTP is the Bay Area's

19 comprehensive roadmap that guides transportation investment in the region over a twenty-five

20 year horizon:

21

The RTP establishes the financial foundation for how the Region

invests in our transportation system by identifying how much

22

money is available to address critical transportation needs and sets

the policy on how this funding is to be spent on transportation

23

needs.

24 (Declaration of Therese McMillan in Support of Defendant's Motions for Summary Judgment, or

25 Partial Summary Judgment, and in Opposition to Plaintiffs' Motion for Summary Adjudication

26 ("McMillan Decl.") at ~ 9 and Exh. D, pp. 1-2 (hereinafter "2007 TIP"); see also Second

27 Amended Complaint for Injunctive and Declaratory Relief Pursuant to Fourteenth Amendment to

28 the United States Constitution, 42 U.S.C. § 1983, TilleV! of the Civil Rights Act of 1964, 42

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I U.S.C. § 2000d, et seq., and Cal. Gov. Code § 11135," Docket No. 137 (the "SAC") at p. 12:23· 2 26.) By law, the RTP must include a financial plan that summarizes the cost of implementation

3 of proposed transportation spending constrained by a realistic projection of available revenues.

4 See 49 U.S.C. § 5303(i)(2); Cal. Gov. Code § 65080(3)(A). Any new transportation project in the

5 Bay Area must be included in the current RTP. (See McMillan Decl., ~ 9 and Exh. D, p. 1; 6 Hofmann Decl., ~ 21 and Exh. S, p. II :4-6.) The RTP also includes operator by operator

7 operating funds projections. (Declaration of Richard A. Marcantonio in Support of Plaintiffs'

8 Motion for Summary Adjudication, Exh. 22.) Organizational Plaintiffs describes the RTP as

9 follows:

10

One ofMTC's most significant responsibilities is the development

and adoption of the Regional Transportation Plan ("RTP"), a long-

II

range planning document in which Defendant MTC identifies the

total pool of transportation funding available over a twenty-five

12

year horizon, identifies the cost of operating and maintaining the

region's transportation system, identifies MTC's regional priorities,

13

and decides how to allocate available funds to identified costs.

14 (SAC at p. 2:1-13.) The 2001 RTP and all prior RTP's are obsolete. (See McMillan Decl., ~ 8,

15 Exh. C.)

16 D.
17

CBE Waived Any Claims Related To The 200S RTP
In 2002, CBE, along with Transportation Solutions Defense and Education Fund

18 ("TRANSDEF"), sued MTC, the Bay Area Air Quality Management District ("BAAQMD"), and

19 other government agencies over their adoption of the 2001 San Francisco Bay Area Ozone

20 Attainment Plan For The I-Hour National Ozone Standard, (hereinafter the "Bayview Lawsuit"),

21 San Francisco Superior Court, Case No. 323849. (See Hofmann Decl. at ~ 24, Exh. V.) In that

22 suit, CBE alleged, inter alia, that MTC violated California Health & Safety Code section 40233 21 by failing to develop a Transportation Control Measure plan ("TCM") that would achieve the

24 required emission reductions from transportation sources to meet attainment of state and federal

25 air quality standards. See id At the heart ofCBE's claim against MTC was its allegation that

26 MTC failed to increase public transit ridership to required levels thus leading to increased

27 vehicular traffic and pollution:

28

[MTC's] failure to implement TCM #2 and increase transit

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I

ridership has resulted in substantial increases in the number of

single occupancy vehicles on Bay Area roadways. These additional

2

vehicles have added to traffic congestion, increased air pollution,

necessitated increased highway capacity projects with attendant

3

environmental impacts, and degraded the quality of life for Bay

Area residents.

4

5 (Hofmann Dec!., ~ 24 and Exh. V; p. 22:22-28.)

6

In March 2004, Bayview plaintiffs CBE and TRANSDEF entered into an agreement with

7 MTC and BAAQMD resolving the Bayview Lawsuit (hereinafter the "Agreement"). (See 8 McMillan Dec!. ~ 42, Exh. AA.) The Agreement required MTC to consider certain additional 9 "smart growth" criteria in the development and preparation of the 2005 Region~l Transportation 10 Plan ("2005 RTP") and Draft Environmental Impact Report ("Draft EIR") and to provide CBE

11 and TRANSDEF with data regarding the cost per new rider for each new transit project in the

12 2005 RTP. (See id. at pp. 5; 8.) Furthermore, the Agreement required MTC to prepare annual

13 reports for five years detailing the projects and programs that are recipients ofMTC discretionary

14 funding decisions from the following discretionary or partially discretionary funding sources: 1

15

Funding Categories: FTA Section 5307, FTA Section 5309, FTA

Section 5311, Surface Transportation Program, CMAQ, TEA -

16

MTC-Funded portion, Regional Transportation Improvement

Program, TDA - Articles 3, 4, 4.5 and 8, State Transit Assistance -

17

Population Based, AB 664 Bridge Tolls, Regional Measure I

Bridge Tolls, AB 1107,'

18

19 (Id at p. 9.) In consideration CBE released related claims as follows:

20

eBE and TRANSDEF, on behalf ofthemselves and their respective

directors, officers, employees, agents, representatives, successors in

21

interest or assigns, waive relinquish and release any and all claims,

rights, liabilities, demands, obligations, duties, promises, damages,

22

actions, and causes of action of any kind whatsoever, whether

known or unknown, arising under any provision of law to challenge

23

judicially MTC's development, preparation and/or adoption of the

2005 RTP or its ElR.

24

25 (Id at pp. 10-11.) The Agreement also includes a general release of all claims related to the 2005

26 1 Copies of these reports are attached to the McMillan Decl. at ~ 43, Exh. BE. 2 Despite defining the "funding categories" it considered to be "discretionary" in the Agreement,
27 CBE's counsel recently attempted to discredit MTC's expert, Stefan Boedeker, for basing his

economic analysis on those very funding categories at Mr. Boedeker's deposition. (See Hofmann 28 Dec!. @ ~25, Exh. W, pp. 14:2-16:17.)

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1 RTP, including CBE's allegations regarding funding policies, AC Transit operating shortfalls,

2 and public participation. The Settlement Agreement also includes a mutual release of"any and all

3 Claims with respect to, pertaining to, or arising from the facts of the Lawsuit" and a waiver of

4 California Civil Code section 1542. (Id, at 11.) The Agreement further provides that: (1) it shan

5 be governed by California law; (2) "no rule of construction to the effect that any ambiguities are

6 to be resolved against the drafting party shall be employed in the interpretation of the agreement";

7 and (3) that it may be plead as a defense by the parties in any action in violation of the agreement.

8 (Jd at p. 13.)

9

III. PROCEDURAL BACKGROUND

10

The current, operative complaint in this matter is the SAC for Injunctive and Declaratory

11 Relieffiled by Plaintiffs, including Organizational Plaintiffs, on November 1,2007. (See SAC.)

12 The SAC alleges that MTC engaged in funding practices that discriminated against the riders of

13 AC Transit in violation of (1) Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d; (2) the

14 Equal Protection Clause of the Fourteenth Amendment of the United States Constitution; and, (3)

15 California Government Code § 11135. (See id) Although the SAC lacks temporal limitation and

16 fails to identify any specific funding decision or decisions that caused the hallTl alleged,

17 Organizational Plaintiffs seek a declaration that MTC has violated each of these three laws

18 "through its prior, current and on-going procedures." (See id. at pp. 1: 16-2: 13.)

19

Specifically, CBE alleges that in exercising its authority over transportation funds, MTC

20 underfunds AC Transit, which serves a relatively higher percentage of low-income minorities, but

21 adequately funds BART and Caltrain, which serve a somewhat smaller percentage of low income 22 minorities on their respective systems.3 (See SAC at pp. 1: 16-2:24.) CBE alleges that MTC's

23 funding decisions: (1) result in AC Transit receiving a smaller average capital and operating

24 subsidy per rider than BART and Caltrain riders; and (2) leave AC Transit with operating

25 shortfalls thus forcing service cuts and fare increases. (See SAC at pp. 1:21-2:24; Hofmrum Dec!.

26

3 Even though AC Transit has the relatively highest percentage of minority riders on its system, 27 across the three transit operators, BART actually serves a larger number, and thus percentage of
the minority riders for the three operators combined. (Declaration of Stefan Boedeker
28 ("Boedeker Dec!.") and Exh. A, pp. 11-12, (Expert Report of Stefan Boedeker).) • 8 •

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1 at~21, Exh. S, p. 7:13-27.)

2

Plaintiffs seek no retrospective relief. Instead, they seek injunctive relief and ask that

3 MTC be permanently enjoined from:

4

(1) making any funding decision that has an unjustified

disproportionately adverse impact on AC Transit riders of color,

5

including decisions that cause an inequitable subsidy per passenger

trip andlor inequitable quality or quantity of service for AC Transit

6

riders as compared to Caltrain or BART passengers; and,

7

(2) supporting the funding of or funding any improvement or

expansion in service that detracts from the equitable funding of

8

services that benefit AC Transit riders.

9 (See SAC at pp. 1:2-3:825: 16-27:15; ; Prayer ~~ 5,6) Finally, Plaintiffs seek attorneys fees under

10 42 U.S.C. § 1988 and California Code of Civil Procedure § 1021.5. (See id. at p. 3:9-15).

11

These claims concern MTC's RTPs including the 2005 RTP. For example, as alleged in

12 the SAC and Plaintiffs' Motion for Summary Adjudication, MTC's preparation and development

13 of the RTP fonns the bases of its claims. (See SAC at pp. 2: 1-3:8; 12:27-13:3; 14: 14-25; 16: 12-

14 24.) Specifically, Organizational ~laintiffs allege that as a result ofMTC's discriminatory

15 funding policies, "AC Transit has consistently received inadequate money to fund its operating

16 budget, and has suffered a multimillion dollar "transit operating shortfall" in each ofMTC's

17 RTP's since 1994," (See id.) . .organizational Plaintiffs also allege that MTC implements a

18 "policy" by which it prevents funds from being used for AC Transit's operating purposes even

19 though they are statutorily eligible forsuch use. (See Pltfs' MPA ISO Mot. for Sum. Adjud., p. 21

20 n.22.) Further, .organizational Plaintiffs claim that in the "fourth step" in the RTP process, MTC

21 has devoted billions of dollars to expand BART and Caltrain service levels while failing to

22 preserve existing levels of AC Transit service. (See id.). Accordingly, the thrust of

23 Organizational Plaintiffs' claims are based upon MTC's RTPs.

24

IV. LEGAL ARGUMENT

25 A. Legal Standard on Summary Judgment for Lack of Standing

26

When challenged, it is axiomatic that the party invoking the jurisdiction of the court bears

27 the burden of demonstrating" inter alia, the existence of standing throughout the litigation. See

28 Warth v. Seldin, 422 U.S. 490, 518 (1975); McNutt v. 'General Motors Acceptance Corp., 298

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1 U.S. 178, 189 (1936). Standing is not a mere pleading requirement, "but rather an indispensable

2 part .of the plaintiffs case, each element must be supported in the same way as any other matter

3 on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence

4 required at the successive stages of the litigation." See Lujan v. Defenders afWildlife, 504 U.S.

5 555,561 (1992).

6

While at the pleading stage, general factual allegations of injury resulting from the

7 defendant's conduct may suffice, "in response to a summary judgment motion, the plaintiff can

8 no longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other evidence
9 'specific facts, '" demonstrating standing. Id.; see also Spencer v. Kemna, 523 U.s. .I, 10 (1998)

10 (citing FWIPBS, Inc. v. Dallas, 493 U.S. 215, 231 (I990)) (holding that it is not sufficient for

11 standing to be inferred from the arguments and averments in the pleadings, but must affirmatively

12 appear in the record). Thus, where, as here, the moving-party demonstrates the absence of

13 jurisdiction, "the party opposing the motion must furnish affidavits or other eviderice necessary to

14 satisfy its burden of establishing subject matter jurisdiction." See Safe Airfor Evelyone v. Meyer,

15 373 F.3d 1035, 1039 (9th Cir. 2004).

16 B. 17

The Organizational Plaintiffs Lack Standing to Assert the Causes of Action Raised in thcSAC

18

"An article III court cannot entertain the claims of a litigant unless that party has

19 demonstrated the threshold jurisdictional issue of whether it has constitutional and prudential

20 standing to sue." Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 469 F. Supp. 2d 803, 812 (N.D. Cal.

21 2007) (citing Lujan v. Defenders of Wildlife, 504 U.S. at 560). "[T]o challenge government

22 action in federal court, a plaintiff must have been 'injured in fact. '" Boating Indus. Ass'n v.

23 Marshall, 601 F.2d 1376, 1380 (9th Cir. 1979) (citing Sierra Club v. Morton, 405 U.s. 727, 734-

24 35 (1972). "This requirement differentiates a person with a direct stake in the outcome of the

25 particular litigation, however small that stake may be, from a person merely concerned with the

26 legal issues raised." Id.

27

Thus, as a prerequisite to bringing or maintaining a suit in federal court, a plaintiff must

28 demonstrate (1) that it has suffered an "injury in fact" that is both "(a) concrete and particularized

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1 and (b) actual or imminent, not conjectural or hypothetical;" (2) that the injury is or was caused

2 by the challenged conduct ofthe defendant(s); and (3) that "it is likely, as opposed to merely

3 speculative, that the injury will be redressed by a favorable decision." ld (citing Friends o/the

4 Earth Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 181). Organizations, like Organizational

5 Plaintiffs herein, "may have standing to sue 'in [their] own right ... to vindicate whatever rights

6 and immunities the association itself may enjoy,' and in doing so, 'may assert the rights of its
7 members, at least so long as the challenged infractions adversely affect it members' associational

8 ties.'" [d. (citing Warth v. Seldin, 422 U.S. 490, 511 (1975)).

9

1. The Organizational Plaintiffs Lack Standing to Assert These Claims on

Behalf of Their Members

10

11

As stated above. Organizational Plaintiffs' primary contention is that they are pursing this

12 lawsuit to vindicate the rights of certain of their members. In order for the Organizational

13 Plaintiffs to establish standing to assert these claims on behalf of their members, they must each

14 demonstrate that (1) their members would have standing to assert the claims on their own; (2) the

15 interests they seek to protect are germane to their organizational purpose; and (3) neither the

16 claim asserted nor the relief requested requires the participation of the individual members in the

17 18

., lawsuit. See Hunt v. Washington State Apple Adver. Camm 'n, 432 U.S. 333, 343 (1977). The individual members of the Organizational Plaintiffs lack standing

to assert the causes of action raised in the SAC

19

20

Both ATU and CBE allege that some of their members are "people of color who utilize

21 AC Transit to serve their transportation needs." (SAC at pp. 6:24-25; 8:8-9.) Accepting this

22 allegation, the Organizational Plaintiffs' individual members lack standing to assert the claims at

23 issue herein for the same reasons that the individual plaintiffs, Sylvia Darensburg, Vivian Hain,

24 and the class they purport to represent lack standing. These reasons are discussed in detail in

25 MTC's Motion for Summary Judgment Against Plaintiffs and Plaintiff Class for Lack of Standing

26 and the supporting evidence, which is hereby incorporated by reference.

27

28
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1

b. The rights at issue in the SAC are not germane to the organizational

purposes of either ATU or CBE

2

3

Organizational Plaintiffs allege that, by its funding allocations, MTC has and continues to

4 discriminate against riders of AC Transit on the basis of their race and/or national origin. (See 5 SAC at p. 1:2-15.) In essence, Organizational Plaintiffs allege that MTC's funding allocations

6 discriminate against AC Transit riders of color who receive lower quantity and quality of transit

7 service than riders of Caltrain and BART. (See id at p. 2:14-17.) On the basis of this alleged

8 discrimination, Organizational Plaintiffs raise three causes of action, each predicated on laws

9 designed to guard against racial discrimination. (See id at pp. 26:23-28:5.) Thus, this lawsuit

10 seeks to promote racial equality in access to public transportation by forcing MTC to allocate

11 more of its funding budget to AC Transit and less to Caltrain and BART. (See id. at passim; 12 McMillan Dec!. at ~ 6.)

13

(1) Promoting allocation of public transportation funding to a

specific transit operator, at the expense of the other transit

14

operators in specific minority communities, is not germane to

ATU's organizational purpose

15

16

ATU's publications and foundational documents reveal its organizational purpose, that is,

17 to increase federal and state funding to mass transportation and to promote the work-related

18 interests of its membership. For example, both ATU's national constitution and local by-laws set

19 forth the objectives of the organization, to wit: to promote education, employment, increased
20 compensation~ and reduced labor hours for transit workers. (See Hofinann Decl. at ~ 6, Exh. D, p.

21 5; ~ 3, Exh. A, p. 4.) ATU also publishes both a state and federal legislative agenda which center

22 around promotion of increased funding to public transportation. (See Hofmann Decl. at ~ 7,

23 Exhibit E; ~ 8, Exhibit F; ~ 9. Exhibit G.) .These published agendas feature such goals as

24 decreasing reliance on foreign oil, increasing ridership, improving the quality of transportation,

25 protecting against terrorism, increasing safety and security, and, consonant with the objectives 26 stated in ATU's foundational documents, improving working conditions for transit employees.4

27 4 ATU also states a very broad interest in promoting the interests of its members generally. (See

Hofinann Dec!. at ~ 6. Exhibit D. p. 5; ~ 3. Exhibit A, p. 4.) ATU may thus argue that promoting
28 any of its members' interests is germane to its purpose. Such an argument must fail as it would

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I (See id.)

2

The race-based interests raised by this lawsuit are not germane to these organizational

3 purposes, and, in some instances, are contrary to ATU's broader agenda. As described in detail

4 abC?ve, ATU seeks to promote the interests of its members vis-a.-vis improved working conditions

5 and compensation. ATU may claim that its members are minorities who have been hanned by

6 MTC's allegedly biased funding allocations; however, the evidence does not support this

7 contention. ATU's members are of an unknown racial make-up and mayor may not live in areas

8 served by AC Transit. (See Hofinann Dec!. at ~ 5, Exh. C, p. 31:12-32:10.) In fact, when asked

9 to identifY all members of ATU that actually use AC Transit, ATU identified only four
10 individuals out ofa membership that includes 1,200 or 1,300 At Transit drivers. (See Hofmann

II Dec!. at ~ IS, Exh. M, p. 31:8-26; ~ 5, Exh. C, p. 26:22-25.) Clearly, some of ATU's members

12 may not be minorities and some, minority or white, may not live in areas served by AC Transit

13 and may rely on BART and/or Caltrain to get to work, school, shopping, etc. Thus, setting

14 racially-based policy preferences in favor oftransit access for minority communities cannot be

15 part of ATU's organizational purpose because it bears no relationship to ATU's stated goals.

16

Similarly, ATU exhibits no broader preference for bus service, like AC Transit, as

17 compared with rail service, like BART and Caltrain, a dichotomy that Organizational Plaintiffs 18 have presented as a proxy for racial discrimination in MTC's funding choices. 5 (See Hofmann

19 Dec!. at ~ IS, Exh. M, pp. 19:26-20:22; SAC pp. 1:16-20; 2:14-24.) Instead, the local ATU

20 website states, "The ATU includes bus, subway, light rail, and ferry operators...." (See

21 Hofmann Decl. at ~ 4, Exh. B.) It therefore seems unlikely that ATU's organizational purpose

22 includes promotion of bus over rail service, whether as a proxy for racial equality or otherwise.

23

In fact, ATU's true organizational purposes are, at times, directly opposed to the remedies

24 sought in this lawsuit. For example, one of the major complaints asserted by all plaintiffs in this

25

render the requirement a nullity by permitting ATU to bring suit on behalf of any member with a 26 cognizable injury.

5 MTC rejects the underlying premise that rail service favors one racial group over another;
27 however, that is the asserted legal interest this suit purports to advance, and ATU's standing must

be evaluated accordingly. MTC also rejects the implication that funds allocated to BART and 28 Caltrain may lawfully be allocated to AC Transit instead.

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1 lawsuit is that MTC exhibits a preference for allocating resources to "capital funding," rather than

2 "operations funding," allocations ATU claims are racially discriminatory. (See SAC at pp. 2:1-

3 13; 2:25-3:8; ~ 15, Exh. M, at pp. 11:9-10; 14:23-15:28; 21:13-22:4.) ATU complains that these

4 funding allocations caused service cuts beginning in the 1980s through 2003, which resulted in

5 elimination of several bus routes. (See Hofmann Dec!. at ~ X, Exhibit Y (ATU's Supplemental

6 Interrogatory Responses) at p. 8:3-13.) Accepting arguendo that MTC's funding allocations

7 affect AC Transit's operational budget, which in tum affects service, ATU actually competes

8 with-rather.than advocating on behalf of.-the riding public for a share of that limited budget.

9

In collective bargaining with AC Transit, ATU advocates for higher wages and increased

10 benefits and vacation time for its members. (See Hofmann Decl. at ~ 5, Exh. C, at pp. 43:4-7;

11 48:4-21; 50:21-51: 11.) Salaries and benefits already comprise some 73% of AC Transit's

12 operational budget. (See Hofmann Dec!. at ~ 17, Exh. 0.) Thus, when ATU seeks increases in

13 pay and benefits, it has a substantial impact on AC Transit's limited operational budget.

14 Naturally, the more each driver receives in compensation, the less operating money is available

15 for "preventative maintenance," hiring more drivers, and increasing service to particular areas.

16 For example, although ATU blames MTC for AC Transit service cuts during the same time, ATU

17 obtained for its members more than a 13% increase in pay between 2001 and 2004, and more than

18 an 8% increase in pay between 2005 and 2007. (See Hofmann Decl. at ~ 5, Exh. C, at pp. 44:20-

19 47:9.) Is it not natural to assume that ATU will continue to advocate for proportionately

20 increased compensation for its members, especially if AC Transit receives the increased

21 operational funding sought in this lawsuit?

22

ATU also advocates for equipment"to address the safety and health concerns of the

23 operators, such as ergonomic improvements. (See Hofmann Dec!. at ~ 5, Exh. C, at pp. 52: 17-

24 53:2.) While it is true that ATU has also negotiated for bus improvements that expressly benefit

25 both operators and the riding public such as increased security and sanitation, (see id at pp. 53:6-

26 21; 57: 16-18; 58: 18-60:4.), it does not appear that ATU has ever advocated for a benefit to the

27 riding public, even for its members as part of the riding public, that was not clearly associated

28 with a direct benefit to its members as transit operators. Nor does it appear that ATU has ever

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1 advocated for an expansion of service to minority communities. To the contrary, ATU has

2 knowingly forced AC Transit to cut service, rather than pennit AC Transit to transfer one line to

3 another service provider, ignoring "the serious financial crisis" that AC Transit faced. (See

4 Declaration of Kathleen Kelly in Support of Defendant's Motions for Summary Judgment, or

5 Partial Summary Judgment, and in Opposition to Plaintiffs' Motion for Summary Adjudication at

6 ~ 4, Exh. I, at p. 5 of6.) In fact, ATU has even advocated for bus lines to be rerouted for the

7 benefit of the operators, based on their needs, and to the detriment of the communities previously

8 served by the rerouted lines. (See Hofmann Dec!. at ~ 5, Exhibit C, at pp. 54:22-55:8.)

9

ATU accuses MTC of creating funding constraints that result in fare hikes, service cuts,

10 and inferior transit, but ATU ignores its own role in constraining AC Transit's budget. ATU

11 promotes increased pay, benefits, and vacation time for its members, all of which burden AC

12 Transit's finances and constrain its ability to increase and improve service to minority

13 communities and none of which inure to the benefit of the riders. In fact, as the largest single

14 drain on AC Transit's operation budget, ATU has advocated for pay increases at the same time

15 that service was being cut. There is nothing sinister about this. These are the very legitimate

16 interests that ATU exists to promote, the same organizational objectives stated in ATU's

17 foundational documents. These legitimate interests, however, conflict with those of the AC

18 Transit riders this lawsuit purports to protect, and it is disingenuous for ATU to claim that

19 promoting transit access to one community at the expense of another is germane to its

20 organizational purpose.

21

(2) Promoting allocation of public transportation funding to

increase access to public transportation in specific minority

22

communities is not germane to CBE's organizational purpose

23

As demonstrated by its publications and its activities, CBE is an organization committed

24 to the laudable goal of reducing environmental pollution, especially pollution affecting low

25 income and minority communities. CBE works to eliminate air ~d water "pollution from

26 freeways, power plants, oil refineries, seaports, airports, and chemical manufacturers." (See

27 Hofmann Dec!. at ~ 10, Exhibit H.) This organizational purpose is set forth in CBE's

28 publications and evidenced by its organizational activities. (See id.; Hofmann Decl. at ~ 13, Exh.

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1 K; ~ 14, Exh. L.) Further, there can be little debate that CBE believes that increased funding for

2 and access to public transportation in general has a palliative effect on air pollution in urban

3 areas. (See Hofmann Dec!. at ~ 18, Exh. P, at p. CBE-0652; ~ 19, Exh. Q; ~ 20, Exh. R, at pp.

4 34:14-20; 45:21-46:8.) In the end, however, eBE's goal is not to increase access to public

5 . transportation for its own sake, but to use public transportation as a means to improve air quality

6 in urban areas and, eventually, as a basis upon which to build new land-use policies and

7 community development center~d around decreased vehicle use. (See Hofmann Decl. at ~ 20,

8 Exh. Ratpp. 60:19-63:1.)

9

In general, eSE's position that increased public transit leads to decreased pollution in

10 urban areas appears unobjectionable. In that vein, the general pursuit of increased funding for

11 public transit appears germane to CBE's organizational aims. In the present case, however,

12 . Organizational Plaintiffs set up a false dichotomy between AC Transit and bay area rail service,6

13 offering no evidence that a reallocation of funding from one Bay Area transit agency to another

14 will improve the environmental health of the communities CBE purports to represent. In fact,

15 MTC asked CBE in discovery to state the basis for any contention that increased funding to AC

16 Transit would create environmental benefits to local communities. In response, CBE failed to

17 identify any specific basis for that contention. (See Hofmann Decl. at, 21, Exh. S, at p. 26:28-

18 29:9; ~ 22, Exh. T, at pp. 37:3-9; 7:2-27:20.) CBE bears the burden of proving that the interests

19 promoted by this lawsuit are gennane to its organizational purpose, and if it fails to do so, as it

20 has in this case, the Court must find that it lacks standing to pursue this case. See Idaho Farm

21 Bureau Fed'n v. Babbitt, 900 F. Supp. 1349, 1357 (D. Idaho 1995).

22

In contrast, evidence compiled by MTC's expert consultant, Professor Robert B. Cervero,

23 demonstrates that funding BART and Caltrain is more consonant with CBE's general objectives

24 than taking money from rail service for the benefit of AC Transit. Studies demonstrate that high

25 quality, extensive rail service is crucial to CBE's goals of decreasing traffic and consequent

26 pollution because use increases dramatically when rail service becomes extensive and efficient

27
6 See Declaration of Robert B. Cervero, Ph.D. in Support of Defendant's 28 Motion for Summary Judgment ("Cervero Dec!.") at ~ 5, Exh. B, p. 18.)
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enough to be time-competitive with cars and freeway networks. (See Cervero Decl. at ~ 5, Exh. B

2 p. 10 ~ 4.) Rail funding is also consonant with CBE's long-tenn goal of influencing land-use

3 policy and development. BART and Caltrain have been a central feature of "smart growth" in the

4 bay area and in reducing car use and, consequently, reducing air pollution. (See Cervero Dec!. at

5 ~ 5, Exh. B, p. 7-8, ~ 1; p. 9-10 ~ 3; 15 ~ 3.) Ifnat for BART, there would be greater sprawl in

6 the Bay Area, and more people would have to drive to work in more spread-out locations,

7 increasing car usage and consequent pollution and emissions. (See Hofmann Dec!. at ~ 23, Exh.

8 U, p. 70:8-21.) In fact, BART uses its expansion plans to encourage local communities to adopt

9 high-density, transit-centric land-use policies, which in tum increase ridership and decrease

10 commuting by private car, all consistent with CBE's long-tenn goals. (See Cervero Decl. at ~ 5,

11 Exh. B p. 9-10 ~ 3.) Moreover, BART's current routes and expansion plans almost exclusively

12 cover the most diverse areas of the Bay Area, both in the traditional urban core and in new urban

13 centers. (See Cervera Dec!. at ~ 5, Exh. B, p. 11 ~ 5; p. 12 ~ 6; Attachment A.) By contrast,

14 increased bus service appears to have no impact on development policies. (See Cervero Decl. at ~

15 5,ExhibitB,p.17-18~5.)

16

The environmental benefits created by BART do not inure only to white and/or suburban

17 communities. For example, even Organizational Plaintiffs admit that BART riders are 57%

18 minority. (See SAC at pp. 11: 15-17.) In addition to expanding service at the suburban fringes,

19 MTC has also planned for capital investments in the bay area's urban core as well as racially

20 diverse communities. (See Cervera Dec!. at ~ 5, Exh. B, p. 11 ~ 5; p. 12 ~ 6; Attachment A.) The

21 consequent reductions in traffic congestion must also be assumed to have a palliative effect on air

22 pollution in communities like Richmond and West Oakland which are surrounded on all sides by

23 freeways. As a result, the interests at issue in this lawsuit cannot be gennane to CBE's

24 organizational purpose.

25

2. Organizational Plaintiffs Lack Standing to Assert These Claims on Their

Own Behalf

26

27

Apart from the alleged injuries suffered by their members, Organizational Plaintiffs also

28 pled that they were injured by MTC's allegedly discriminatory conduct in that each organization

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1 had been, and continued to be, forced to devote resources to "combating the ill effects of these

2 practices by, for example advocating on behalf of transit riders of color who receive a lower

3 quality and quantity oftransit services that white transit riders." (SAC at pp. 7:20-27; 8:22-9:2.)

4 In order to demonstrate constitutional standing to assert these claims in their own right,

5 Organizational Plaintiffs must demonstrate injury to the organization, causation, and

6 redressability. See e.g., Lujan, 504 U.S. at 560.

7

a. Organizational Plaintiffs lack standing to assert claims in their own

right because there is no evidence that they have suffered an "injury in

8

fact"

9

Organizational Plaintiffs allege in the SAC that MTC's funding allocations have forced

10 them to devote resources to related advocacy. Such a claim may only give rise to standing if

11 Organizational Plaintiffs can demonstrate that MTC's conduct has "perceptibly impaired" their

12 organizational activities. See Havens Realty Corp. v. Coleman, 455 U.S. 363, 379 (1982); see

13 alsa Praject Sentinel v. Evergreen Ridge Apartments, 40 F. Supp. 2d 1136, 1138 (N.D. Ca!. 1999)

14 (articulating the obvious rule that the resources diverted by the defendant's conduct must be

15 independent of resources devoted to the law suit in which the organization seeks to prove

16 standing).

17

Organizational Plaintiffs' discovery responses, however, belie the allegations of their

18 complaint. MTC served special interrogatories requesting facts supporting Organizational

19 Plaintiffs' contention that MTC's actions had harmed them. Both ATV and CBE responded:

20

MTC's decision-making regarding funding or transportation

planning with respect to AC Transit has had a negative impact on

21

Plaintiff insofar as it has had a negative impact on its members. As

detailed in Plaintiffs' First Amended Complaint ("FAC") and these

22

documents, Plaintiff contends that MTC's decisions have caused

economic and stigmatic injuries and have harmed the quality oflife

23

of Plaintiffs and Plaintiff Class Members.

24 (See Hofinann Dec!. at ~ 16, Exh. N, at p. 7: 14-19; ~ 21, Exh. S at p. 7:9-14.)' Organizational

25 Plaintiffs cannot meet their burden to demonstrate standing in their own right unless they can

26 introduce concrete evidence of perceptible impainnent of their programmatic interests caused by

27

7 No additional, relevant facts are raised in either Organizational Plaintiffs supplemental
28 responses to this interrogatory.
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1 their past advocacy in favor of increased funding to AC Transit for the benefit of minority riders.

2 Because the Organizational Plaintiffs have no such evidence, their claims must be dismissed.

3

b. Organizational Plaintiffs lack standing to assert claims on the basis of

violations of the rights of third partics

4

5

"[E]ven when the plaintiff has alleged injury sufficient to meet the 'case or controversy'

6 requirement, [the Supreme Court] has held that the plaintiff generally must assert his own legal

7 rights and interests, and cannot rest his claim to relief on the legal rights or interests of third

8 parties." Warth, 422 U.S. at 499; see also Duke Power Co. v. Carolina Env;ronmenlal Study

9 Group, 438 U.S. 59, 80 (1978).

10

Even if Organizational Plaintiffs can demonstrate an injury in the form of impaired

11 resources, this is not an injury to a right protected by the laws referenced in the SAC. (See U.S.

12 Const. amend. XIV (due process and equal protection under the law); 42 U.S.C. § 2000d

13 (discrimination on the basis ofrace, color, or national origin); Cal. Gov't Code § 11135

14 (discrimination on the basis ofrace, gender, religion, disability, etc.). For example, in order to

15 state a cause of action under Title VI of the Civil Rights Act of 1964, 42 U.S.c. section 2000d,

16 Organizational Plaintiffs must prove that they are the intended recipients of federal funding to a

17 program in which MTC participated. See Epileptic Foundation v. City and County ofMaui, 300

18 F. Supp. 2d 1003, lOll (D. Haw. 2003). Organizational Plaintiffs both admit that they are not

19 intended beneficiaries of Title VI related funding. (See Hofmann Decl. at ~ 16, Exh. N, at pp.

20 26:21-27:14; ~ 21, Exh. S, at pp. 29:11-30:4.) Similarly, there is no allegation in the SAC to

21 suggest that MTC has discriminated against either ATU or CBE, qua organization, on the basis of

22 race, color, or national origin, and both Organizational Plaintiffs have admitted this in discovery.

23 (See Hofmann Dec!. at ~ 16, Exh. N, at pp. 8:14·9:11;·~ 21, Exhibit S, at pp. 8:7-9:5.) Instead,

24 Organizational Plaintiffs necessarily assert injury caused by MTC's alleged violation of the rights

25 of others to enjoy racial equality. (See SAC at pp. 7:20-27; 8:22-9:2.)

26

As noted above, however, prudential limitations on standing generally forbid litigants

27 from asserting standing on the basis of the rights of others, or "jus tertii," Warth, 422 U.S. at 499,

28 and those few exceptions that are permitted do not apply here. Aside from the rights of

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1 associations to assert the rights of their members as discussed above, the Supreme Court only

2 recognizes standing to assert jus tertii when the right at issue implicates the plaintiffs

3 relationship with the third party, in effect, when the plaintiff is prevented from providing some

4 good or service that the third party has a right to obtain or utilize. See Craig v. Boren, 429 U.S .

. 5 190, 195 (1976) (beer vendor had standing to assert eighteen to twenty-one year old, male

6 customers' equal protection challenge to law permitting sale of alcohol to wo~en over eighteen,

7 but only to men over age twenty-one); Doe v. Bolton, 410 U.S. 179, 188 (l973)(doctors

8 permitted to challenge statute criminalizing abortion on the basis of the constitutional rights of

9 women seeking abortions); Griswold v. Connecticut, 381 U.S. 479, 481 (1965) (drug store owners

10 had standing to assert the constitutional rights of their married customers to purchase

11 contraceptive devices); Pierce v. Society o/Sisters, 268 U.S. 510, 535 (1925) (private schools had

12 standing to assert the constitutional rights of parents and children to choose to attend private

13 school).

14

There is no evidence that either ATU or CBE has this kind of relationship with members

15 of the minority community whose constitutional and statutory rights this lawsuit purports to

16 protect. Instead, it appears that Organizational Plaintiffs are "merely concerned with the legal

17 issues raised," not organizations "with a direct stake in the outcome of the particular litigation" as

18 required to demonstrate standing. Boating Indus. Ass'n, 601 F.2d at 1380.

19

Moreover, courts will generally not permit a plaintiff to assert the rights of third parties

20 unless there is some reason to believe that those third parties will be unable to pursue their rights

21 on their own. See Warth, 422 U.S. at 510. In light of the pending class action, no reason appears

22 to believe that the minority third parties whose rights are implicated "are disabled from asserting

23 their own right in a proper case." Id. Because Organizational Plaintiffs' claimed injury arises out

24 of the alleged violation of the rights of others, and because Organizational Plaintiffs have no

25 special, relevant relationship with the third parties whose rights are at issue, they are barred by

26 prudential standing requirements from asserting the causes of action raised in the SAC. See

27 Warth, 422 U.S. at 499.

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I C. Legal Standard on Partial Summary Judgment

2

"A party against whom relief is sought may move at any time, with or without supporting

3 affidavits, for summary judgment on all or part of the claim." Fed. R. Civ. P. 56(b). For

4 example, a motion for partial summary judgment is an appropriate vehicle for establishing, inter

5 alia, issue preclusion. See RoM v. Five Platters, Inc., 918 F.2d 1439, 1441-42. Partial summary

6 judgment "ma~ be appropriate on clearly defined, distinct issues." Church Mut. Ins. Co. v.

7 United States Liability Ins. Co., 347 F. Supp. 2d 880, 882 (citing FMC Corp. v. Venda Co., 196 F.

8 Supp.2d 1023, 1029 (E.D. Cal. 2002). "An order under Rule 56(d) narrows the issues and

9 enables the p~rties to recognize more fully their rights, yet it permits the court to retain full power

10

t. o

completely

adjudicate

all

aspects

of

the

case

when

the

proper

time

arrives." .

ld.

(ciling

lOB

II Wright & Miller, Federal Practice and Procedure (3d ed. 1998), § 2737 at 316-18.) Thus, under

12 Rule 56(d), the Court may "ascertain what material facts exist without substantial controversy and

13 what material facts are actually and in good faith controverted" and may "make an order 14 specifying the facts that appear without substantial controversy, and direct[] such further 15 proceedings in the action as are just." Id.

16 D. 17

The Applicable Statute Of Limitations Li~its The Bases For eBE's Claims In order to fonn the bases of their SAC, the alleged discrimination of which eBE

18 complains under the Equal Protection Clause, Title VI and Government Code § 11135 must have

19 occurred in the prescribed time period. See Taylor v. The Regents a/the Univ. a/California, 993

20 F.2d 710, 712 (9th Cir. 1993) (upholding the dismissal of plaintiffs' §§ 1981, 1983, 1985 and

21 200d [Title VI] claims as barred by the statute of limitations for personal injury actions). In

22 California, that time period is two years. See Cal. Code ofCiv. Proc. § 335.1. That two-year

23 statute of limitations applies to Organizational Plaintiffs' injunctive claims. See Cholla Ready

24 Mix, Inc. v. Chivish, 382 F.3d 969 (9th Cir. 2004). Here, Organizational Plaintiffs filed this

25 action in April 2005, alleging "an equitable challenge to MTC's present and ongoing policy of

26 discriminatory funding." (SAC at pp. 1:2-3:8; 25: 16-27: 15.) Accordingly, any claim

27 Organizational Plaintiffs may have regarding the prior RTPs, including the 1994, 1998, and 2001

28 RTPs, is not actionable. Instead, all claims herein are limited to MTC's actions, decisions, and/or

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policies taken or developed by MTC on or after April 2003.

2 E. 3

CBE Is Barred From Bringing Those Parts Of Its Claims Based Upon MTC's Preparation, Development, and Adoption of the 200S RTP

4

As set forth above, Organizational Plaintiffs allege in the SAC that MTC discriminates

5 against their members of color in the way that MTC allocates transportation funding, claims

6 based in large part on the 2005 RTP. (See SAC atpp. 2:1-3:8; 12:27-13:3; 14:14-25; 16:12-24.)

7 By waiving its right to bring any claims related to the 2005 RTP, CBE waived its right to bring

8 this action to the extent its claims relate to the 2005 RTP, or the adoption and development

I

I
9 thereof.

l O I n California, the interpretation of a release or settlement agreement is governed by the 1I same principles applicable to any other contractual agreement.8 See Winet v. Price, 4 Cal.AppAth

12 1159,1165 (Cal. Ct. App. 1992); Edwards v. Comstock Ins. Co.• 205 Cal.App.3d 1164, 1167-69

13 (Cal. Ct. App. 1988). The court's objective in construing the language used in a settlement

14 agreement is to detennine and effectuate the intention of the parties. See Wine!, 4 Cal.AppAth at

15 1166; Appalachian Ins. Co. v. McDonnell Douglas Corp.. 214 Cal.AppJd 1, 11 (Cal. Ct. App.

16 1989). The language of a contract governs its interpretation so long as the language is clear and

17 unambiguous and does not involve absurdity. See Cal. Civ. Code § 1638; Appalachian Ins. Co.,

18 214 Cal.App.3d at 11. It is the outward expression of the agreement, rather than a party's

19 unexpressed intention, that the court will enforce. See Wine!, 214 Cal.AppAth at 1166; Edwards,

20 205 Cal.App.3d at 1169.

21

Thus, in California, a settlement agreement and release of all known or unknown claims

22 accompanied by a waiver of California Civil Code section 15429 ("Section 1542") is sufficient to

23 preclude a party from bringing future related claims r'egardless of whether it was the party's

24 unexpressed subjective intention to release those claims at the time that party signed the

. 25

8 CBE and MTC stipulated that California law governs the interpretation and enforcement of the 26 Bayview Settlement Agreement. (McMillan Decl., ~ 42, Exh. AA, p. 13.)

9 California Civil Code § 1542 provides: "A general release does not extend to claims which the 27 creditor does not know or suspect to exist in his or her favor at the time of executing the release,

which if known by him or her must have materially affected his or her settlement with the 28 debtor."

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I agreement. See Winef, 214 Ca!.App.4th at 1172-73. In Winef, the appellant, 15 years after

2 entering into a settlement agreement and release of all claims related to legal services provided by

3 the respondent, brought a malpractice suit against the respondent regarding those same legal

4 services. See id at 1164. The court rejected appellant's argument that the release did not bar his

5 claims because, at the time he signed the agreement, he neither intended to waive all possible

6 claims nor knew of the possibility of claims at issue. See id.

7

Rather, the court held that the release and the Section 1542 waiver barred the appellant's

8 claims because the appellant's subjective, unexpressed beliefs were not admissible to contradict

9 the express and unambiguous terms of the release to the contrary. See id. at 1166. In so holding,

10 the court relied on the fact that: (1) the appellant was represented by counsel in negotiating and

11 executing the agreement; (2) the parties fashioned language in the agreement to preserve claims

12 outside the scope of the agreement; and, (3) the appellant was advised about the implications of

13 waiving his rights under Section 1542. See id. at 1167-68. Thus, "[i]f [a person's] words·or.acts,

14 judged by a reasonable standard, manifest an intention to agree in regard to the matter in question,

15 that agreement is established, and it is immaterial what may be the real but unexpressed state of

16 his mind on that subject." Id. at 1172.

17

Here, as in Winet, CBE entered into a settlement agreement and release accompanied by a

i'

18 waiver of California Civil Code section 1542, releasing MTC from the present claims.

I

19 Specifically, it is undisputed that as part of the Bayview Settlement Agreement, CBE released all

20 claims, whether known or unknown, related to the development, preparation, or adoption of the

21 2005 RTP and all claims with respect to, pertaining to, or arising from the facts of the Bayview

22 Lawsuit. (McMillan Dec!. at ~ 42, Exh. AA, p. 10-11.) Moreover, the sarnefactors relied upon

23 in Winet are present here. The release included a waiver of all rights and benefits that the parties

24 may ·have under Section 1542; the parties entered into the Agreement with the advice of counsel;

25 and the parties were not induced to execute the Agreement by reason of non-disclosure or

26 suppression of any fact. (See id. at p. 13.) Indeed, CBE's then Legal Director executed the

27 Agreement on behalfofCBE. (See id. at p. 14.)

28

Thus, CBE's release of all claims related to 2005 RTP in the Bayview Lawsuit precludes

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1 CBE from bringing any claims that are based on the preparation, development and/or adoption of

2 the 2005 RTP as part of this lawsuit. It is undisputed that the majority ofCBE's claims are based

3 upon MTC's policies and decisions regarding the allocation of transportation funds. (See SAC at

4 pp. 1:2-3:8; 25: 16-27: 15.) CBE does not seek retrospective relief, rather it is bringing "an

5 equitable challenge to MTC's present and ongoing policy of discriminatory funding." (See id.)

6 Moreover, it is undisputed that the 2005 RTP is the currently operative RTP. See 49 U.S.C. §

7 5303(i)(2); Cal. Gov. Code § 65080(b)(3)(A); McMillan Decl., ~ 9 at Exh. D, p. 2 (2007 TIP).)

8

And as specified in the SAC, CBE specifically alleges that MTC has harmed it through

9 the use of the RTP by failing to cover the operating shortfall of AC Transit in the 2005 RTP. (See

10 SAC at pp. 2:1-3:8; 12:27-13:3; 14:14-25; 16:12-24.) CBE also alleges that MTC implements a

11 "policy" by which it prevents funds from being used for AC Transit's operating purposes even

12 though they are statutorily eligible for such use in assessing need for the RTP. (See Plaintiffs'

13 MSA at p. 21 n. 22.). Finally, CBE claims that MTC has devoted billions of dollars to expand

14 BART and Caltrain service levels while failing to preserve existing levels of AC Transit service

15 when dedicating funds as part of the RTP process. (See id). Based on the Agreement, all of these

16 claims should be barred, as should any other allegations related to the 2005 RTP.

17

While MTC does develop other transportation planning documents such as the statutorily

18 required Transportation Improvement Plan, all projects included in those plans must be consistent

19 with the funding decisions in the current RTP in order to receive funding. (See McMillan Decl. at

20 ~ 9, Exh. D, pp. 1-2.) Moreover, in 2004 when it entered into the Agreement, CBE knew of the

21 various sources of discretionary transportation funds and how MTC allocates such funds to

22 various transit projects. (McMillan Decl. at ~ 9, Exh. D, pp. 8-9 (detailing MTC's obligations

23 under the Agreement regarding the allocation of discretionary funds and preparation of the 2005

24 RTP).)

25

Accordingly, CBE is precluded from bringing its_claims to the extent they are based on

26 the 2005 RTP, and the adoption or development thereof, because CBE explicitly released MTC

27 from any claims related to the 2005 RTP by entering into the Agreement. Partial summary

28 judgment on this issue is warranted. - 24-
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1

V. CONCLUSION

2

Like all litigants invoking the jurisdiction of a federal court, Organizational Plaintiffs must

3 demonstrate standing in order to maintain their suit. Without standing, the Court lacks subject

4 matter jurisdiction to adjudicate the claims. Herein, Organizational Plaintiffs implicitly assert

5 standing to vindicate the rights of their members and their own interests in using resources for 6 purposes other than those at issue in this suit. As discussed above, Organizational Plaintiffs lack

7 standing to sue on behalf of their members because (I) their members lack standing to sue on 8 their own; and (2) the rights this suit purports to enforce are not germane to either organization's 9 purpose. Organizational Plaintiffs also lack standing to sue in their own right because (1) they 10 have each failed to demonstrate that MTC's actions have "perceptibly impaired" their 11 organizational activities; and (2) they are barred by prudential concerns from asserting the rights

12 of third parties. As a result, Organizational Plaintiffs lack standing to assert the claims raised in 13 the SAC, and the Court must dismiss those claims for lack ofjurisdiction.

14

Moreover, by entering into the Agreement, CBE expressly waived its right to bring any

15 future claims related to the 2005 RTP. Because CBE's claims are based upon MTC's decisions

16 regarding the allocation of discretionary funds, and most of those decisions were made in the

17 preparation, development and aduption of the 2005 RTP, CBE has effectively waived its· right to

18 bring those parts of its claims. For the foregoing reasons, MTC is entitled partial summary 19 judgment as a matter of law.

20 DATED: April 22, 2008 21

HANSON, BRIDGEIT, MARCUS, VLAHOS & RUDY, LLP

22

By:

lsi

23

ADAM HOFMANN

Attorneys for Defendant

24

METROPOLITAN TRANSPORTATION

COMMISSION 25

26

27

28
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NOTICE OF MOT. AND MOTION FOR SUMM. JUDGMENT AGAINST PLAINTIFFS ATU AND CBE; POINTS AND AUTHORITIES; Case No. C 05 01597 EDL

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I HANSON BRIDGETT MARCUS VLAHOS & RUDY, LLP KIMON MANOLIUS - 154971
2 WARREN WEBSTER - 209540 JULIAH. YEIT - 209207
3 425 Market Street, 26th Floor San Francisco, CA 94105
4 Telephone: (415) 777-3200 Facsimile: (415) 541-9366
5 kmanolius@hansonbridgett.com

6 FRANCIS F. CHIN - 059231 CYNTHIA E. SEGAL - 179636
7 Metropolitan Transportation Commission Joseph P. Bort Metrocenter
8 101 8th Street Oakland, Ca 94607-4700
9 Telephone: (5\0) 817-5700 Facsimile: (510) 464-7848
10 fchin@mtc.ca.gov

11 Attorneys for Defendant METROPOLITAN TRANSPORTATION COMMISSION
12 UNITED STATES DISTRICT COURT
13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14

15 SYLVIA DARENSBURG, VIRGINIA

16 MARTINEZ, and VIVIAN HAIN;

individuals on behalf of themselves and all

17 others similarly situated;

.

AMALGAMATED TRANSIT UNION

18 192; COMMLINlTIES FOR A BETTER

ENVIRONMENT,

19 Plaintiffs,

20 v.

21 METROPOLITAN TRANSPORTATION

22 COMMISSION,

No. C 05 01597 EDL

DEFENDANT'S NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT AGAINST PLAINTIFFS AND THE PLAINTIFF CLASS FOR LACK OF STANDING

Date: Time: Crtrm: "Before:

June 24, 2008 9:00 a.m. E, 15th Floor Hon. Elizabeth D. LaPorte

23

Defendant.

24

25
26

27

28

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1

NOTICE OF MOTION AND MOTION

2

TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on June 24, 2008 at 9:00 a.m. in Courtroom E of the above-

4 entitled Court, located at 450 Golden Gate Avenue, San Francisco, California, Defendant

5 Metropolitan Transportation Commis.sion ("Defendant" or "MTC"), through its attorneys, Hanson

6 Bridgett LLP, will and hereby does move this Court for summary judgment in its favor in this

7 action brought by Plaintiffs Sylvia Darensburg and Hain on behalf of the plaintiff class

8 ("Plaintiffs").

9

This motion is made on the grounds that the Second Amended Complaint fails as a matter

10 ofIaw because Plaintiffs cannot show that they have standing under Article III ofthe United States

11 Constitution to maintain this action; and MTC is therefore entitled to summary judgment as a

12 matter ofIaw.

13

This motion will be and hereby is based on this Notice of Motion and Motion (including th

14 supporting Memorandum of Points and Authorities); the Declarations of Julia H. Veit, Therese

15 McMillan, Deborah McClain, Nancy Skowbo, Kathleen Kelly, James DeHart, and Alan Zahradnik

16 filed herewith, all pleadings and papers on file in this action any other matters of which judicial

17 notice may be taken by the Court, and upon such oral argument and documentary evidence as may

18 be presented at or before the hearing.

19

20

21

22

23

24

25

26

27

28

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I
2 3 I. 4 II.
5 6 7 8 9 10 11 12 13 14 15 16 17 18 19
20
21
22 23 III. 24 25 26
27
28

TABLE OF CONTENTS

Page

INTRODUCTION .............................................................................................................. I

FACTUAL BACKGROUND ............................................................................................. I

A. The Metropolitan Transportation Commission ....................................................... 1 1. MTC's Mission and Statutory Authority ........................:........................... 1

2. MTC's Racially Diverse and Complex Jurisdiction ................................... 2

3. MTC's Long Range Transportation Planning Activities ............................ 3

4. MTC's Annual Funding Activities ............................................................. 3

a. AC Transit Receives All Operating funds to Which It is Entitled ............................................................................................ 3

b. AC Transit Receives All Capital Funds For Which it is Eligible............................................................................................ 4

c.

AC Transit Has Received All "Capitalized Maintenanc~"

Requested ........................................................................................ 5

B. Specific MTC Programs........................................................................................... 6

1. Lifeline Transportation Network Report ..................................................... 6

2. Richmond Bus Project and Free Bus Passes ............................................... 7

C. The Alameda Contra Costa Transit District. ........................................................... 7

I. AC Transit Controls Its Operating Revenues ............................................. 7 2. AC Transit's Service Cuts and Ridership Gains ......................................... 8

D. Plaintiffs' Injuries..................................................................................................... 9

1. PlaintiffHain ................................................................. ,............ ,... ,..... ,...... 9

a. Jobs and Volunteer Positions ........................................................ 10
b. Education Opportunities for Hain and her Children ..................... 10

c. Public Safety ................................................................................. 10

2. PlaintiffDarensburg .............. ,......... ,......................................,....... ,.... ,..... 11

a. Employment .................................................................................. 12

b. Additions to AC Transit's Service ................................................ 12

c. Public Safety and Bus Conditions................................................. 12

LEGAL ARGUMENT ...................................................................................................... 13

A. Legal Standard ...................................................................................................... 13

B. Because the Representative Plaintiffs Lack Standing To Bring This Action In Federal Court, so Does the Class They Represent.. .......................................... 14

1. Plaintiffs Cannot Show That They Suffered An Injury In Fact ................ 15

a. There is No Evidence of Stigmatic Injuries .................................. 15

(I) There is No Evidence of a Two Tiered Approach to Funding ............................................................................. 16

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Case3:05-cv-01597-EDL Document179 Filed04/22/08 Page4 of 33

1

TABLE OF CONTENTS

(continued)
2

3

(2) There is No Evidence That More Money Goes to

"Disproportionately White Riders" ................................... 16

4

(3) MTC Helps The Transit Dependenl.. ................................ 17

5

(4) There is No Evidence of Unequal Treatment.................... 17

6

b. There is No Proof of Economic and Quality of Life Injuries ....... 18

(1) Increased Fares .................................................................. 18

7

(2) Free Bus Pass .................................................................... 18

8

C. Plaintiffs Cannot Prove That MTC Caused Their Injuries.................................... 19

9

1. AC Transit Agrees With MTC's Preventive Maintenance Policy And Has Received Preventive Maintenance Funding For the Past

10

Eight Years................................................................................................ 20

2. AC Transit Never Requested Funding for a "Richmond Bus

11

Project."..................................................................................................... 20

12

3. MTC Does Not Improperly Channel Capitat Funds to Rail ..................... 20

4. MTC Is Not Responsible For Funding AC Transit's "Strategic

13

Vision." ..................................................................................................... 21

14

D. This Court Cannot Redress Plaintiffs' Injuries .......... :.......................................... 21-

t.

AC Transit Controls its Service And There Is No Evidence That

15

Service Cuts Hanned Plaintiffs................................................................. 22

16

2. There is No Evidence That MTC Has Failed To Fund Projects Supporting AC Transit's Minority Riders................................................ 23

17

a.

MTC Initiated the Lifeline Transportation Network ..................... 23

18

b. MTC Funded The Richmond Bus Project..................................... 23

c. MTC's Policy Regarding Preventive Maintenance Does Not

19

Hann Plaintiffs .............................................................................. 24

20

3. Redressability is Too Speculative For the Court To Grant the Relief Sought ....................................................................................................... 24

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2

3 Cases

4 Allen v. Wright

5

468 U.S. 737, 750 (1984) ............................................................................................................ 14

Armstrong v. Davis

6

275 F.3d 849, 860 (9th Cir. 2001)............................................................................................. 14

7

Bates v. UPS 51 I f.3d 974 (9th Cir. 2007)..................................................................................................... 14

8 Bennett v. Spear

520 U.S. 154, 168 (2000) .......................................................................................................... 21

9 Block v. Meese

.

10

793 F.2d 1303, 1308 (D.C. Cir. 1986) ...................................................................................... 19

Cholla Ready Mix, Inc. v. Civish

11

382 F.3d 969 (9th Cir. 2004)...................................................................................................... 22

12

City ojLos Angeles v. Ly01ls 461 U.S. 95, 111 (1983) ............................................................................................................ 15

13 Dandridge v. Williams

397 U.S. 471, 487 (1970) .......................................................................................................... 25

14 Keyes v. School Dist. No.1 Denver, CO

15

413 U.S. 189, 201 (1973) .......................................................................................................... 15

Long Term Care Pharmacy Alliance v. Leavitt

16

530 F.Supp.2d 173 (D. D.C. 2008) ........................................................................................... 25

17

McNutt v. General Motors Acceptance Corp. 298 U.S. In, 189 (1936) .......................................................................................................... 13

18 Missouri v. Jenkins

515 U.S. 70, 88-89 (1995) ......................................................................................................... 15

19 Nat'l Wrestling Coaches v. Dep't alEdlie.

20

366 F.3d 930, 941 (D.C. Cir. 2004) .................................................................................... 19,21

Nova Health Systems v. Gandy

21

388 F.3d 744, 749 (10th Cir. 2004)............................................................................................. 15

22

O'Shea v. Littletoll 414 U.S. 488, 496 (1974) .................................................................................................... 15,21

23 Safe Air/or EvelyoJle v. Meyer

373 F.3d 1035,1039 (9th Cir. 2004)......................................................................................... 14

24 Simon v. Eastern Ky. Welfare Rights Org.

25

426 U.S. 26, 37 (1976) .............................................................................................................. 14

Spencer v. KellinG

26

523 U.S. 1, 10 (1998) ............................................................................................................. 7,14

27

Steel Co. v. Citizens for a Belter Env', 523 U.S. 83, 98 (1998) .............................................................................................................. 21

28

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I

TABLE OF AUTHORITIES

(continued)
2

3 Taylor v. The Regents ofthe Untv. a/California

993 F.2d 710, 712 ...................................................................................................................... 22

4 Tozzi v. U.S. Dep" afHealth & Human Servs.

5

271 F.3d 301, 308 (D.C. CiT. 2001) .......................................................................................... 19

Warth v. Seldill,

6

422 U.S. 490, 518 (1975) .............................................................................................. 13,21,24

7

Yick Wo v. Hopkins 118 U.S. 356, 373 (1886) .......................................................................................................... 15

8

Statutes

9

23 C.F.R.

10

§§ 450.322(b)(II) ...................................................................................................................... 24

II

23 U.S.C. § 1.34 ....................................................................................................................................... 3,24

12

§ 34(g) .......................................................................................................................................... 3

13

42 U.S.c. §2000d ....................................................................................................................................... 13

14 . 49 U.S.C.

15

§ 5309 ........................................................................................................................................... 4

§ 5307 ................................................................................................................................... 4, 5, 6

16 Cal. Code ofCiv. Proc.

17

§ 335.1 ........................................................................................................................................ 22

Cal. Gov. Code

18

§11135 ....................................................................................................................................... 13

19

§§ 65080, 66513, 29532 ............................................................................................................... 3

§ 66500 ........................................................................................................................................ I

20 Cal. Pub. Util. Code

21

§ 24501 ......................................................................................................................................... 7

§ 24506 ......................................................................................................................................... 7

22

§ 24561 ................................................................................................................:........................ 7

23

§ 24646 ......................................................................................................................................... 7

24

§ 24823 ......................................................................................................................................... 7

§ 24830......................................................................................................................................... 7

25

§ 24883 ......................................................................................................................................... 7

26

§ 24884 ................................................................................................................................... 7,18

27

§ 24885 ......................................................................................................................................... 7

§ 29142.2 ...................................................................................................................................... 4

28

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1

TABLE OF AUTHORITIES

(continued)

2

Page

3

§ 99200 ......................................................................................................................................... 3

§ 99313.6............................................................................................. ,........................................ 3 4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 -v-

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r

I. INTRODUCTION

2

In filing their First Amended Complaint after this Court dismissed their original, Plaintiffs

3 Darensburg and Hain proffered alleged facts that they promised this Court they could prove. After

4 three long years of litigation, dozens of depositions, hundreds of interrogatories, and the productio

. 5 ofmassive amounts of paper and electronic data, Plaintiffsare back right where they started.

6. Because they have no facts to demonstrate any possible notion that they have standing under

7 Article III to maintain this action, Defendant MTC brings this motion for summary judgment to

8 dispose of this case once and for all.

9

To be sure, in bringing this motion, MTC relies heavily on the same evidence that was

10 attached to its motions to dismiss filed three years ago. Then, as now, MTC maintains that neither

11 Plaintiffs nor the class can show the requisite injury, causation or redressability to establish Article

12 III standing. First, neither plaintiff has demonstrated a stigmatic, economic or quality oflife injury

13 sure to be repeated, to establish that they have suffered an injury in fact. ,There can be no stigma

14 against a class of persons when the class to which they are compared has a similar racial make-up.

15 Nor is there proof of an economic or quality of life injury.

16

Second, Plaintiffs cannot show that MTC's actions constitute a "substantial factor

17 motivating" AC Transit's decisions regarding service levels or fares. To the contrary, AC Transit

18 is thankful for MTC's efforts to address its funding shortfalls. Finally, due to the complex nature

19 of transportation funding and finance, and the market forces which control the amount of funding

20 available, Plaintiffs Can offer nothing more than pure speculation as to whether a favorable ruling

21 would result in a decision by AC Transit to increase its service for minority riders.

22 23 A.

II. FACTUAL BACKGROUND
The Metropolitan Transportati~n Commission..

24

1. MTC's Mission and Statutory Authority

25

MTC is the regional transportation planning agency for the San Francisco Bay Area.

26 (Declaration of Julia H. Veit ("Veit Decl:') '13 Exh. A, pA.) The California Legislature created

27 MTC in 1970. MTC is a metropolitan planning organization ("MPO") that provides

28 comprehensive transportation planning for the nine Bay Area Counties. Cal. Gov. Code §§ 66500

I
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1 et. seq. The region's transportation system includes 101 cities with 3 major airports, S public ports

2 8 toll bridges, dozens of highways, miles of bicycle and pedestrian routes, thousands of buses,

3 cable cares, rail cars, and ferries, thousands of miles oflocal streets and roads, and over two dozen

4 independently governed transit operators. (Id. ~3, Exh. A, pp.10-15.)

5

2. MTC's Racially Diverse and Complex Jurisdiction.

6

MTC is not a transit operator. (Veit Decl. ~3. Exh. A, pp. 6-7.) Rather, over twenty

7 independently governed transit agencies provide service in the Bay Area. (ld. p.1S.) Three transit

8 operators provide rail service, 16 provide bus service, I operates ferry service, 3 operate either bus

9 and rail or bus and ferry service. (Declaration of Therese McMillan ("McMillan Decl.") ~3, Exh.

lOA.) The Municipal Railway ("MUNI"), Santa Clara Valley Transit Authority ("VTA"), San Mate

11 County Transit District ("SamTrans"), Peninsula Corridor Joint Powers Board ("Caltrain"), Golde

12 Gate Bridge Highway and Transportation District ("GGT"), Bay Area Rapid Transit District

13 ("BART") and Alameda Contra Costa Transit District ("AC Transit") are the seven largest

14 operators in the region. (Id. p. 8.)

15

In its 2006-2007, MTC commissioned a region-wide survey of Bay Area transit ridership.

16 (ld. ~4, Exh. S.) The Survey showed that Bay Area transit operators have'very diverse riderships;

17 of the 21 operators surveyed, 19 have a minority ridership of 50% or mote. (Id. pp. 3-95-98.)

18 While the results of the Survey indicate that AC Transit has among the highest percentage of

19 minority riders at 78%, S of the other 6 largest operators have at least SO% minority ridership: VT

20 (70%), SamTrans (70%), MUNI (58%), BART (54%) and Caltrain (51 %). (Id.) Only GGT, at

21 .38%, does not. (ld.) In absolute annual numbers, MUNI, BART, and AC Transit serve

22 approximately 220 million, 100 million, and 6S million passengers, respectively. (Id. ,-rS, Exh. A,

23 pp. 60-63, 26 and 14); Plaintiffs' MSA at p. 5.) BART serves 54 million minority riders, MUNI

24 serves 127 million minority riders, and AC Transit carries SO.7 million minority riders. (McMillan

25 Dec!. ~5.)

26

Finally, transportation dollars are scarce. (Id. ~6.) While MTC as the MPO for the region

27 does seek funding for the region, transportation funding is often a zero sum game and all twenty

28 plus transit operators have unruet needs. (ld.)
2
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I

3. MTC's Long Range Transportation Planning Activities

2

MTC adopts a Regional Transportation Plan ("RTP") to help achieve a coordinated and

3 balanced regional transportation system including mass transit, highway, maritime, bicycle,

4 pedestrian, goods movement, and aviation facilities. Cal. Gov. Code §§ 65080, 66513, 29532. Th 5 RTP also is the region's long-range transportation plan, a prerequisite for the Bay Area's projects' 6 qualification for federal funds over a 25 year time horizon. 23 U.S.t. § 134(g), The current RTP,

7 adopted in 2005, is entitled Transportation 2030. MTC is now preparing the 2009 RTP.

8

4. MTC's Annual Funding Activities

9

MTC programs certain transportation funds, and allocates others. Different rules govern

10 each funding source. Transportation funds fall into two broad categories, operating and capital, 11 and come from two major sources, federal and non-federal. (McMillan Decl. ~10.) In almost all 12 cases, operating funds come 'from non-federal sources; most capital funds come from federal 13 sources. Except where operational maintenance expenses,can be capitalized, "capitalized

14 maintenance," transit operators generally cannot use capital funds for operational expenses, (Id,)

15

a. AC Transit Receives All Operating funds to Which It is Entitled.

16

Plaintiffs' chief complaint revolves around AC Transit's alleged lack of operating funds,

17 There are three significant state and local transit funding sources for operations. First, 18 Transportation Development Act ("TDA") funds (Cal. Pub. Util. Code § 99200 e/ seq.) are 19 generated by a 1f.t cent general sales tax, apportioned by county. Although BART is eligible for 20 TDA funds, MTC does not allocate any of these funds to it. (McMillan Decl. ~13.) From 1998-

21 2006, AC Transit received all available TDA funds to which it was entitled, including that which

22 could have been allocated to BART. (ld.; Veit Decl. ~5, Exh. C, pp. 27·30). Plaintiffs' expert did

23 not recommend any changes to MTC's policy with regard to allocating TDA funds, (Id. ~4, Exh. B

24 pp. 254:22·255:18, 259:15-25, 260:8·263:12.)

25

Second. State Transportation Assistance ("STA") funds (Cal. Pub. UtiI. Code § 99313.6 e/

26 seq.) are a relatively small source of capital and operating funds generated by a sales tax on fuel.

27 The State distributes STA funds based on both population and revenues, (McMillan Dec!. ~11,)

28 Plaintiffs' expert recognized that MTC had discretion over population based funds and did so in a

.-'-,

3
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1 "legal" manner. (ld. pp. 266:3-12.) MTC has no discretion in the distribution of revenue-based

2 funds; there is no claim that AC Transit should receive more. (ld. pp. 264: 17-265:8.)

3

Finally. AB 1107 funds (Cal. Pub. UtiI. Code § 29142.2) come from a Y, cent sales tax

4 originally imposed to build BART. State law dedicates 75% of AB 1107 to BART; the remaining

5 25% may go to AC Transit, BART or MUNl MTC allocates the 25% share equally to AC Transit

6 and to MUNI, even though BART is eligible and MUNI's ridership is more than 3 times AC

7 Transit"s. (McMillan Decl. 1[13.) Plaintiffs' expert testified that MTC's allocation of AB 1107 wa

8 more than acceptable. (Veit Decl. ~2, Exh. B. pp. 46:20-49:15) In addition, there are several

9 sources of transit operating funds generated at the local level the vast majority of which are not

10 controlled in any way by MTC. (McMillan Decl. ~14.) Finally, MTC has no control over the

11 disposition of funds generated by transit fares. (lei.)

12

b. AC Transit Receives All Capital Funds For Which it is Eligible.

13

MTC has direct programming authority for federal capital funds that flow by statutory

14 formula, mainly from 49 U.S.C. §§ 5307 and 5309. In most cases, operators may not use these

15 capital funds for operations. MTC has no authority to redirect federal funds earmarked by

16 Congress for specific transportation projects. (Id. '115.) The Federal Transit Administration

17 ("FTA") administers formula §§ 5307 and 5309 fund.s and distributes them based on urbanized

18 areas defined by census data. Bus, rail and ferry systems are eligible for § 5307 funds. There are

19 three categories of § 5309 funds. First, tail, ferry, and limited bus projects are eligible for "Fixed

20 Guideway Modernization" funds. AC Transit did not submit an eligible project between FY 1998-

. 21 2006. (ld. '116.) Second, Congress makes funding decisions regarding "New Starts" funds,

22 dedicated to new rail or bus rapid transit projects, and "Bus Discretionary," for bus and bus

23 facilities. (Veit Decl. ~4, Exh. B, pp. 152:10-154:8.)

24

MTC's advocacy on behalf of AC Transit for "New Starts" or "Bus Discretionary" projects

25 is undisputed. For "New Starts" funding, MTC included all projects proffered by AC Transit in its

26 "wishlist" as part of its Regional Transit Expansion Plan. (ld. pp. 162: 10-164:7.) For "Bus

27 Discretionary funds," MTC listed all requests from all operators in its "Annual Reports to

28 Congress," the publication by which MTC advocates for federal funding for all operators in the

4

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1 region. (McMillan Decl. '117.) Per AC Transit, MTC does "not rule" and is not involved in the

2 § 5309 discretionary funds process. (Veit Dec!. ~5, Exh. C, pp. 56-57.)

3

c. AC Transit Has Received All "Capitalized Maintenance" Requested.

4

Congress phased out completely federal transit operating assistance in FY 1998-99. 23

5 U.S.c. §§ 133, 149. MTC may capitalize maintenance expenses, which are nonnally operating

6 expenses, with § 5307 capital funds. Id. Federal regulations limit preventive maintenance money.

7 (Veit Dec!. ~4, Exh. B, pp. 109:12-110:1.) Inexplicably, although neither Plaintiffs nor their expe

8 can quantify AC Transit's eligibility, requests, or receipt of preventive maintenance funds, (id. '13,

9 Exh. A, pp. 162-176,240-248,251-253,114, Exh. B, pp 120:17-121 :7), Plaintiffs claim that MTC

10 has riot provided these funds to AC Transit.

11

By consensus with its transit operator partners, MTC has historically scored preventive

12 maintenance lower than projects like capital rehabilitation or replacement. Reliance on these fund

13 for operating purposes diminishes the objective of maintaining the region's capital plant. (Id. ,)3,

14 Exh. A, p. 162; McMillan Decl. ~20, Exh. H, p. 13.) AC Transit supports MTC's policy and

15 confirms it was created through consensus. (Veit Dec!. ~5, Exh. C, pp. 98:12-102:2, 95:18-96:4)

16 ("if [MTC] did [score preventive maintenance higher], BART could bankrupt the whole

17 system... because their [and MUNI's] maintenance needs ... exceed everybody in the region ...if

18 you made that a top scoring project, they would get all the money.")

"19

MTC has enabled operators to utilize these funds for operations by making exceptions to it

20 scoring policy. (McMillan Dec!. ~19, Exh G, ~23, Exh. K, ~24, Exh. L.) In particular, MTC has

21 approved every request received from AC Transit for preventive maintenance since 1999. (Veit

22 Dec!. at 113, Ex. A, pp. 151-154, 162-172.) In FY 2000-01, MTC approved AC Transit'srequest

23 ($49,272,738) for preventive maintenance money to free up operating dollars that could be used to

24 buy busses that did not meet federal "Buy America" requirements. (McMillan Decl. 'il21, Exh. I,

25 e.g., p. 5.) In FY 2001-02 and FY 2002-03, MTC approved AC Transit's requests, for $4,900,000

26 and $10,832,392 respectively. (Id. 1122, Exh. J. at pp. 11,68,101 and 195.)

27

In FY 2003-04, in response to the recession and budget shortfalls, MTC allowed the

28 distribution of preventive maintenance funds to help address this crisis. (Id. ,)23, Exh. K.) AC

5

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1 Transit requested and received $17,192,896 in preventive maintenance funds for FY 2003-04. (Jd.

2 ~44, Exh. CC, p. 4.) Again, in FY 2004-05, MTC programmed $34,673,834 in these funds to AC

3 Transit, $16,235,595 of which was for operating purposes. (Jd. p. 7.) AC Transit thanked MTC fo

4 its "considerable effort...with revenue shortfalls, primarily by allowing expenditure of preventive

5 maintenance funds to keep bus service running throughout AC Transit's service area." (Decl. of
6 Nancy Skowbo 'L, Exh. E.) These sentiments remain true today. (Jd.)·

7

In FY 2005-06, MTC, again by consensus, adopted a new policy regarding the use of

8 § 5307 funds whereby an operator could use these funds for preventive maintenance two out of

9 every 12 years. (McMillan Dec!. ~19, Exh. G.) Under the 2005 policy, MTC programmed AC

10 Transit's request in preventive maintenance funds ($13,776,000) for FY 2005-06. (Id. ~20, Exh. H,

11 p. 5.) AC Transit, however, did not use all of the money that year. (Id.) AC Transit is the largest 12 recipient of preventive maintenance ~nds since 1999, receiving over $130 million. (Id. p. 4.)

13 B. 14 15

Specific MTC Programs. 1. Lifeline Transportation Network Report. As part ofMTC's 2001 Regional Transportation Plan ("2001 RTP"), MTC included the

16 Lifeline Transportation Network Report ("LTN"). The LTN assessed the ability of the fixed route

17 transit system to serve low-income communities. About half (43%) of the region's existing transit

18 routes met the criteria for lifeline service. (McMillan Dec!. '125, Exh. M.) In the 2005 RTP, MTC

19 dedicated $216 million in new funds to supplement already existing lifeline services and programs

20 -- in addition to MTC's core investment in basic transit service, which is funded primarily by 21 public subsidy. (!d. ~8, Exh. C, pp. 52-55).) More recently, MTC committed an additional $143 22 million. (Id. ~28, Exh. N.) Even'though MTC has already committed $359 million to tins

23 program, Plaintiffs still cry foul.

24

MTC has been aggressive in implementing the Lifeline Program. MTC has initiated a gran

25 program, called the Community Based Transportation Plan ("CBTP") process, by which

26 communities apply for funds to pay for planning to best address transit gaps. Plaintiffs' expert

27 testified that community based organizations are a good way to go. (Veit Decl. ~6, Exh. D, pp.

28 47:11-22.) MTC identified five "areas ofconcem" in AC Transit's District, out of25 in the region

"-

6
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1 (Skowbo Decl. ,j1l, Exh H.) "AC Transit staff has been an active participant in the development 0

2 all the CBTPs in the service area," which are managed by the Alameda County Congestion

3 Management Agency. (Jd.)

4

2. Richmond Bus Project and Free Bus Passes

5

Although Plaintiffs refer to a letter sent to MTC by 39 Ministers demanding that MTC fund

6 a specific Richmond bus program in 2001, the letter contains no such request. (McMillan Decl.

7 ~29. Exh. 0.) Nor did AC Transit ever request funding for that program. (See id. '130. Exh. P; Veit 8 Dec1.1I3, Exh. A, pp. 186-187.) Instead, another operator, WestCAT, reqile~ted and received

9· funding for an "Intra West Contra Costa Rapid Bus,'~ ranked as the most cost-effective project in

10 the Blueprint Project Notebook referenced in the SAC. (McMillan Dec!. ~33. Exh. S.)

11

With regard to AC Transit's free bus pass program, MTC provided AC Transit $1 million

12 to fund a pilot program. (Id. ~34, Exh. T.) MTC did not fund the program a second year because it

13 was unsuccessful. AC Transit testified that the program lost money and was a "disastrous idea."

14 (Veit Dec!. ~5, Exh. C, pp 71:16-25, 76:18-24; ~8, Exh. F, pp.49:12-14.) Finally, no other

15 operator receives such funding. (McMillan Dec!. '134.)

16 C. 17

The A!ameda Contra Costa Transit District AC Transit runs busses in Alameda and Contra Costa counties, as well as Transbay service.

18 (Veit Decl. '13, Exh. A, pp. 91-92.) AC Transit connects with nine other bus systems, 21 BART

19 stations, six Amtrak stations, and three ferry terminals. (!d. pp. 92-94.)

20

I. AC Transit Controls Its Operating Revenues.

21

AC Transit is a creature of statute. Cal. Public Utilities Code §24561 et seq. AC Transit's

22 Board of Directors is "the legislative body ofthe district and detennines all questions of policy."

23 !d. §24883; see also §§24884-5, 24885, 24506. The Board, of course, is "responsible for the

24 budget...They set fares and they decide on service levels." (Veit Dec!. ~4, Exh. B, pp.33:23-34:6.)

25 "They have ultimate responsibility, acting...on recommendations of staff as to what service will b

26 provided," including routes and frequency. (!d. 34:7-19.) The elected Board is very independent.

27 (Id. at pp. 33:2-22; see also Ca!. Pub. Uti!. Code §§24646 et seq., 24823 et seq., and 24830 et seq.)

28 FTA agrees with this sentiment: "[t]here is no evidence to suggest that MTC has had a significant

7

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1 controlling affect on AC Transit's regular bus operations....MTC's role is principally that of an

2 oversight and transfer agent that is not directly responsible for AC Transit's operating decisions.

3 AC Transit does ... have substantial latitude in detennining how its funds are allocated."

4 (McMillan Dec!. ~31, Exh. V.)

5

2. AC Transit's Service Cuts and Ridership Gains.

6

MTC in no way has caused AC Transit's service cuts. AC Transit cut service between Jun

7 2003 and June 2004 by about 14% (Veit Dec!. ~8, Ex. F, pp. 12:19-13:9), Declaration of Deborah

8 McClain (HMcClain Decl.") at ~2, Ex. A p. vi.). but Plaintiffs' expert believes that the cuts were

9 closer to 10%. (Veit Dec!. 114, Ex. B, pp. 184:15-185:3.) Since June 2004, AC Transit has only

10 added service. (Id. ~8, Ex. F, pp. 12:19-23.)

11

AC Transit's Board Policy 550, "Service Standards and Design Policy," governs the

12 allocation and distribution of service, including the December 2003 cuts. (Skowbo Decl. ~9, Exh.

13 F, ~5 Exh. B; Veit Oed ~8, Exh. F.) "Geographic equity is a consideration, but it is not as

14 important as providing more frequency when such service is warranted." (Skowbo Dec!. ~5, Exh.

15 F, pp. 20: 17-21: 11).) Route productivity is important when looking at cuts. (Veit Decl. at ~8, Exh

16 F, pp. 19:25-20:9.) This is sound policy. (Id. 114, Exh. B, pp. 57:4-59:1.) Moreover, it "places

17 more emphasis on income than on ethnlcity because the ... [entire AC Transit service] area is

18 mixed." (Id. 118, Exh F, pp.19:25-20:9.) AC Transit's FY 2003-04 cuts were due to the recession.

19 (Skowbo Dec!. ~7, Exh. D, Ch.I.) The recession battered transit operations because ofthe heavy 20 reliance on. sales tax revenues, which comprise 40% of operating revenues. (McMillan Decl. ~41,

21 Exh Z.) AC Transit's SRTP for FY 2003-2012, echoes this:

22

[m]ost of AC Transit's operating program revenue originates from fuel,

sales, property, or other related taxes and fares ... the recession ...

23

increased unemployment and stalled consumer spending [and]

decreases in sales tax revenue. Ridership declined by 10% between FY

24

2001-02 and FY 2002-03, and fare collections are down. The current

economic downturn has had a significant negative impact on District

25

funding. According to MTC, anticipated tax generations for FY 2002-

•

03 reflect a precipitous drop compared to the actual receipts ofFY

26

2001-02. The region relies heavily on sales tax revenues for transit

operations, and economic indicators .do not forecast a strong recovery

27

for the San Francisco Bay Area for FY 2003-04 or FY 2004-05.

28 (Skowbo Dec!. ~7, Exh. D.) As to the December 2003 and June 2004 cuts, AC Transit:

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1

protected the trunks. We protected the low income areas. We mostly

cut service lip ill the hills, and we had done analysis previous to that

2

that basically said if we protected the trunks, we were protecting

most of the low income riders. We were also protecting most of the

3

riders anyway ....[w]e mostly cut low priority lines ....we have a list

of perfonnance by routes, and we just started at the bottom up and

4

worked our way up.

5 (Veit Decl. '18. Exh. F, pp. 22:2-23, 23:7-11) (emphasis added).) With the cuts, ridership increased

6 4% in FY 2003-04 and fare box recovery increased as well. (Id. ~8, Exh. F, pp. 33:19-24),

7 McMillan Dec!. ~2, Ex. A.) AC Transit reported that:

8

we cut service in places where very few people were taking the bus

and we protected it where they were.... I think the economy started

9

taking an upturn, and so where we protected the service, people were

able to keep riding the bus or start riding it some more ....My

10

recollection is that ridership did start creeping up ..

11 (Veit Dec!. '18, Exh. F, pp. 33:19-34:12) Thus, service cuts do not "weaken" the system. (Id.

12 51 :11-23.) ("Sometimes it's a good opportunity to get rid of the dead wood. It's a political

13 decision, and it's a lot easier for the policymakers to cut service when they have a funding crisis,

14 and it just gets rid of stuff that they should have got rid of a long time ago.,,).)1

15

Other operators were not so fortunate. SamTrans, a San .tvl;ateo bus operator, cut its VRM

16 by some 8.5% and lost 12% of its ridership over the same period. (DeHart Dec!. ~~ 3-8.) GGT, a

17 bus operator in Marin County, cut its service by a whopping 32% and lost 12% of its ridership. 18 (Zahradnik Dec!. '1'12_6)' Most transit operators cut service and lost riders.(McMillan Dec!'~3, A)

19 D. 20

Plaintiffs' Injuries Plaintiffs Hain and Darensburg allege injuries not tied to service cuts or MTC actions..

21

1. Plaintiff Hain

22

Hain lives in Berkeley, some 4 blocks from the Berkeley BART station. (V~it Dec!. ~G,

23 Exh. 9, pp. 5:22-24; 112:11-13.) From February 2002 through July 2006, she lived in east Oaklan

24 (Id. at 14:24-15:4), and before that she lived on San Pablo near 20th Street. (Id. 13:13-16.) She

25 has 3 daughters and owns a 1986 BMW 325E, which she acquired in 2006. (Id. 9:9-14,64:19-25,

26

27 1 AC Transit conducted a Title VI report on the cuts it made in this period. (Skowbo Decl. ~6,

Ex.C.) 28 2 SamTrans' ridership is 70% minority. GGT's ridership is 38% minority. (McMillan Decl. ~2,

Exh. A.)

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1 65:19-22.) Since 2001, Rain has owned a car for most ofthe time. (Id. 78:24-79:5, 74:8-15, 72:

2 15-22, 70:13-71 :12; 79: 10-80: 1.) When her car is in the shop, Rain uses AC Transit. (Id. 64-79.)

3 Since March 2002, Hain has had an unlimited bus pass, free bus tickets, or a gas allowance of up t

4 $70 per month. (Id. 48:4-51:10; 69:14-70:9.)

5

a. Jobs and Volunteer Positions

6

Hain used AC Transit to get to work for a 2 month position. (ld. 21-24.) Since 2001, Hain

7 has volunteered with various organizations. She volunteered: to obtain cash assistance for a

8 "welfare to work" program (ld. pp. 34: 17-24) for 10-15 hours a week for 5 months and used AC

9 Transit Route 51 A even though she had a car (Id. 34:9-16; 78:24-79:5; 36: 12-15); to get food

10 assistance for 20 to 30 days for 3 hours' per day at a Food Bank and used AC Transit to get there

11 (!d. 41 :5-42: 14; 43:23-44:4; 45:25-46: 16); and, to obtain help with Welfare to Work requirements

12 once a week at LIFETIME (Id. 54:17-20, 55:5-13) and used the 82 or 82L bus, even though she

13 owned a car. (!d. 55:15-16; 57:12-13; 74:8-15.)

14

b. Education Opportunities for Rain and her Children.

15

Rain currently attends college. (Id. 81:18-20.) Even though she had a car, she dropped he

16 classes in Spring 2005 because "[transportation] became an issue, a problem with getting home at

17 night. [She] was missing too much class. [She] had night classes, and [she] was on the bus during

18 that time. (Id. at 85:15-20.) Rain used AC Transit lines 82, 40, 40L, and 56. (ld. at 86:23-25.)

19 Currently, Hain has no problems getting her children to schooL In the past, after AC Transit line 6

20 was cut around 2003-2004. Hain claims there was "no public transportation access to her

21 daughter's school" even though she had a car. (Id. at 108:2-6.)

22

c. Public Safety.

23

Finally, while Hain claims that AC Transit Routes 43, 46. 56, and 82 were reduced in 1998

24 she claims no harm apart from "worsened public safety" with respect to the 82, 82L and the 43

25 lines. (Jd. at 117:9-12.) Hain's only claim is that there are longer walks to and waits for buses in

26 the evening and early morning hours. (Jd. at 116: 12-117:3.) Because Hain had a car and a free bu

27 pass, there is no evidence that AC Transit cuts or fare increases have harmed her.

28
10
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1

2. Plaintiff Darcnsburg.

2

-Sylvia Darensburg lives in Oakland and has three children in their late teens or early

3 twenties. (Veit Decl. ~IO. Exh. H, pp. 15:4-5,25: 1-6.) Darensburg's son and one of her daughters

4 each has a car. After losing access to a car in 2001, she relies on her children, co-workers, and

5 public transit. (Id. 37:6-14; 84: 14-85:7; 92-93. 217:4-23.) Before living in Oakland. Darcnsburg

6 lived in within 5 to 7 blocks from and used Hayward BART. (!d. 100:2-10; 102:18-103:3; 105:7-

7 16.) Since then, Darensburg has lived either on MacArthur Boulevard or 96th Avenue, within

8 walking distance of AC Transit lines: 57, 40, 46, and NL (Transbay). (Jd. 117: 14-25, 118:9-13.)

9 She estimates that she takes BART 5 to 7 times per week in connection with riding AC. Transit. (ld

10 ~ll, Exh.1, p. 14-15.)

11

From December of2001 until Jan. 2003, she used AC Transit, BART, other bus service,

12 and rides from co-workers to access her various jobs. (Jd. ,[10, Exh. H, pp. 59:7-9, 59:24-60:7,

13 62:2-8, 90:21-25, 91 :6-8, 92:4-23, 93:17-24; 136-139).) While she was aware of proposed cuts,

14 she did not notice any actual AC Transit cuts until August of2003. (Id. 31:20-25,136:2-19.)

15 Darensburg claims that changes to the 57, 58, and 58X bus routes, which run along MacArthur

16 between east Oakland and downtown Oakland, have had an impact on her. (fd. at 36~ 139, 195-

17 197; Skowbo Dec!. ~4, Exh. A, p. 2.) She rode the 57 bus daily and claims that AC Transit's

18 changes added travel time. (Veit Dec!. ~1O, Exh. H, pp. 129:9-15; 136:22-137:8.) She now used

19 the 40L, then transfers to the 57. (Id. 165:8-14.) Because of changes to the 58 line, she has to wal

20 an extra 3 or 4 blocks "from where the 57 let [her] off' to visit her daughter. (Jd. 195:10-15.) She

21 alleges changes to the 58X made her the trip to downtown Oakland for job searches and legal

22 appointments take "twice as long," id. at 139:7-12, even though other AC Transit alternatives are

23 available. (Id.160:11-15.)

24

AC Transit streamlined its service on MacArthur in Dec. 2003: it merged the 58 and the

25 58X (a peak period service) with the NL into one limited stop line running between Eastmont

26. Transit Center and Emeryville; it shortened the 57 to run every 12 minutes as of June 2004; and th

27 50 operated every 15 minutes on weekdays. (Skowbo Decl. ~4, Exh. A, p. 2-3).) Darensburg now

28 catches a 40L bus to Eastmont Transit Station, where she then transfers to the 57, headed towards

"'-,

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I downtown Oakland. (Veit Dec!. ~IO, Exh. H, pp. 165:8-14).) She claims that these changes added

2 a single transfer to her downtown Oakland commute.

3

Moreover, according to a 2004 AC Transit study on the impacts of these changes and

4 detell11incd that the "changes appear successful.". (Skowbo Decl. '14, Exh. A, p.3.) The MacArthur

5 corridor changes did not have a negative impact on minority neighborhoods. (Kelly Decl. '14, Exh.

6 I.) None of the routes identified: 57, 58, or 58X were among those AC Transit listed as cut. (Jd.)

7

a. Employment.

8

AC Transit's 2003-2004 cuts did not affect Darensburg's work. She worked in Concord fa

9 one month in late 2003. (Veit Dec!. ~IO, Exh. H, pp. 60:2-9.) She rode the 40L bus to the

10 downtown Oakland BART, rode BART to Concord, then connected to CCCTA. (Id. at 69:18-24.)

11 She worked unti1S:3 0 p.m. at the latest, and she arrived home in the evening at about 7:30. (Id.

12 70:6-7,72:15-17.) Although she stated that the 40L stopped running early, it runs to 7:45 p.m. (Id

13 139:13-17; (id. ~ll, Exh. I, pp. 35:22-23.) Between 2003 and 2005, Darensburg volunteered at

14 LIFETIME; she got paid there from April 2005 until May 2006. (Veit Dec!. ~IO, Exh. H, pp.74:!3

15 75:4.) She attended classes after work and admits no impact from AC Transit cuts as the change t .
16 the 92 Route was absorbed by the 77 and 84 bus. For a week in 2006, she worked in Berkeley.

17 (Id. 38: I 0-39: 1, 39: 17-20.) Darensburg claims that the 40L was cut, but admits that this was the

18 slowest of three options available to her. (Id. 41:7-42:3, 53:24-54:8, 52:22-53:3.)

19

b. Additions to AC Transit's Service

20

Darensburg has enjoyed new service since the 2003-2004 service c~anges, including the

21 72R; the M route, added in 2003, to get from Hayward BART to Chabot College for classes; the

22 NX3 route, a Transbay route servicing MacArthur corridor and running past the Eastmant Transit

23 Station; and a new all-nighter service to which she has access from her home in Oakland added in

24 2006. (Id. 198:24-199:7,197:18-198:8,166:6-167:13,145:20-146:7.)

25

c. Public Safety and Bus Conditions

26

Darensburg claims that AC Transit's public safety has "worsened," Due to route changes,

27 she walks in unsafe neighborhoods; since the 58 was cut in 2003, she had to walk three to four

28 blocks in an unsafe neighborhood to see her daughter. (Id. 195: 1-15.) She also notes however that

12

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I the 57 was "a pretty clean bus." (Id. 126:2-5.)

2

III. PROCEDURAL BACKGROUND

3

Plaintiffs allege that MTC has violated: (1) Title VI of the Civil Rights Act of 1964, 42

4 U.S.C. § 2000d; (2) the Equal Protection Clause; and, (3) California Government Code § 11135.

5 Without identifYing any funding decision, Plaintiffs seek a declaration that MTC has violated each

6 of these three laws. (SAC Prayer at ~~2-4.) Plaintiffs seek injunctive relief to enjoin MTC from:

7

(1) making any funding decision that has an unjustified disproportionately adverse impact

8

011 AC Transit riders of color. including decisions that cause an inequitable subsidy per

passenger trip and/or inequitable quality or quantity of service for AC Transit riders as

9

compared to Caltrain or BART passengers; and,

10

(2) supporting the funding of or funding any improvement or expansion in service that

detracts from the equitable funding of services that benefit AC Transit riders. 11

12 (Id. at ~~ 5,6) MTC moved to dismiss the Complaint on standing grounds. (Docket No.5.) The

13 Court granted the motion with leave to amend on September 19, 2005. «"Order I" Docket No. 33.)

14 In its Order, the Court recognized that only intentional discrimination is actionable under the

15 federal claims. (Order I at p. 14.) MTC again moved to dismiss, but the Court denied that motion

16 on January 20,2006. (("Order II") Docket No. 66.) Plaintiffs filed the operative Second Amended

17 Complaint ("SAC") on November I, 2007, Docket No. 137, which MTC answered.

18
19 A.

Legal Standard

III. LEGAL ARGUMENT

20

When jurisdiction is challenged, it is axiomatic that the party invoking the jurisdiction of

21 the court bears the burden of de~onstrating the existence ofjurisdiction throughout the litigation.

22 See Warth v. Seldin, 422 U.S. 490, 518 (1975). Standing is not a mere pleading requirement, "but

23 rather an indispensable part of the plaintiffs case, each element must be supported in the same wa

24 as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and

25 degree of evidence required at the successive stages of the litigation." Lujan v. Defenders of

26 Wildlife, 504 U.S. 555, 561 (1992). Indeed, "in response to a summary judgment motion, the

27 plaintiff can no longer rest on such 'mere allegations,' but must 'set forth' by affidavit or other

28 evidence 'specific facts,'" demonstrating standing. ld.; see also Spencer v. Kemna, 523 U.S. 1, 10

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(1998) (It is not sufficient for standing to be inferred from arguments and avennents in the

2 pleadings, but must affinnatively appear in the record.) Thus, where, as here, the moving party

3 demonstrates the absence ofjurisdiction, "the party opposingthe motion must furnish affidavits or

4 other evidence necessary to satisfy its burden of establishing subject matter jurisdiction." See Safe

5 Airfor EVe/yolle v. Meyer, 373 F.3d 1035, 1039 (9th Cir. 2004).

6 B.
7

Because the Representative Plaintiffs Lack Standing To Bring This Action In Federal Court, so Does the Class They Represent.

8

Standing is "an essential and unchanging part of the case-or-controversy requirement of

9 Miele III," Lujall, 504 U.S. at 560, which itself "defines with respect to the Judicial Branch the

10 idea of separation ofpowers on which the Federal Government is founded." Allell v. Wright, 468

11 U.S. 737, 750 (1984). "No principle is more fundamental to the judiciary's proper role in our

12 system of government than the constitutional limitation of federal-court jurisdiction to actual cases

13 or controversies." Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 37 (1976). Standing,

14 unlike other jurisdictional doctrines, "focuses on the party seeking to get his complaint before a

15 federal court and not on the issues he wishes to have adjudicated." lei. at 38.

16

In a class action, standing is satisfied if the plaintiff class shows that at least one named

17 plaintiff has standing. See Armstrollg v. Davis, 275 F.3d 849, 860 (9th Cir. 2001). "That a suit

18 may be a class action ... adds nothing to the question of standing, for even named plaintiffs who

19 represent a class 'must allege and show that they personally have bcen injured, not that injury has

20 been suffered by other, unid~Q.tified members ofthe class to which they belong and which they

21 purport to represent.'" Simo1l, 426 U.S. at 40, n. 20.

22

The Ninth Circuit follows the Lujall standing test: (1) the plaintiffsuffered an injury in

23 fact, i.e., one that is sufficiently "concrete and particularized" and "actual or imminent, not

24 conjectural or hypothetical," (2) the injury is "fairly traceable" to the challenged conduct, and (3)

25 the injury is "likely" to be "redressed by a favorable decision." Bates v. UPS, 511 F.3d 974 (9th

26 Cir. 2007) (citing Llljall, 504 U.S. at 560-61).

27

According to Bates, the standing formulation for a plaintiff seeking prospective injunctive

28 relief is simply one implementation of Lujan's requirements. Bates, 511 F.3d at 985. Plaintiffs

14

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1 must show that they have suffered or are threatened with a "concrete and particularized" legal

2 hann, Lujall, 504 U.S. at 560, coupled with "a sufficient likelihood that he will again be wronged

3 in a similar way." City ofLos Angeles v. LYOIlS, 461 U.S. 95, 111 (1983). As· to the second inquiry

4 they must establish a "real and immediate threat of repeated injury." O'Shea v. Littleton, 414 U.S.

5 488,496 (1974). "(P]ast wrongs do not in themselves amount to [a] real and immediate threat of

i·

6 injury necessary to make out a case or controversy." LYOIlS, 461 U.S. at 103. In addition, the

7 claimed threat of injury must be likely to be redressed by the prospective injunctive relief. Grahall

8 v. Fed. Emergency Mgmt. Agency, 149 F.3d 997.1003 (9th Cif. 1998).

9

1. Plaintiffs Cannot Show That They Suffered An Injury In Fact.

10

First, Plaintiffs must demonstrate a "concrete and particularized" legal ha1lll, Lujall, 504

11 U.S. at 560, coupled with "a sufficient likelihood that he will again be wronged in a similar way."

12 Lyons, 461 U.S. at 111. "The nature of the ... remedy is to be detennined by the nature and scope

13 of the constitutional violation"; hann from one particular inadequacy in government administratiOi

14 does not authorize a remedy as all inadequacies in that administration. Missouri v. Jenkins, 515

15 U.S. 70. 88-89 (1995). In Orders I and II, while the Court detennined that Plaintiffs had alleged

16 injuries to withstand a pleading challenge, Plaintiffs have failed to prove up their allegations.

17

a. There is No Evidence of Stigmatic Injuries

18

"[SJtigmatic injuries may satisfy "injury in fact." (Order II). As the Court explained:

19

[tJhe rationale holding that the stigma arising from overtly

..

20

discriminatory schemes is a sufficiently concrete, actual injury to

confer standing, however, is that the very classification by itself is

21

inherently degrading, so eliminating the classification will eliminate

the stigma, even if the plaintiffs do not otherwise benefit. (citations

22

omitted.)

23 (Order I at pp. 5-6.) In Order II, the Court held that facially neutral government policies and

24 practices may -- or may not -- be administered in such a plainly skewed way against a disfavored
•
25 group as to inflict a sufficient stigmatic injury. (Order II at p. 7 (citing Yick Wo v. Hopkins, 118

26 U.S. 356. 373 (1886); Keyes v. School Dist. No. J Deliver. CO. 413 U.S. 189.201 (1973).) So.

27 while Plaintiffs sufficiently pled a stigmatic injury, there is no evidence that MTC's facially neutra

28 policies or practices have been "administered in such a plainly skewed way."
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(1) There is No Evidence of a Two Tiered Approach to Funding.

2

Plaintiffs allege that: "MTC systematically discriminates against low-income people of

3 color in the selection of transit projects, with an explicit two-tiered approach to transit projects tha

4 benefit minority passengers and white passengers, fully funding the latter, but leaving an unfunded 5 shartfa1l...far the fanner." (SAC ~ 49 (emphasis added)(Order II at p.7.)'

6

But Plaintiffs have failed to show what this "two-tiered approach" is that benefits white

7 passengers at the expense of minority passengers. The Bay Area is diverse. Nineteen of 21 transit

8 operators -- rail, bus and ferry -- have a minority ridership of 50% or above. (See Il.A.2.)

9 Moreover, some operators, including BART, serve more minority riders than AC Transit. (ld.)

10 Accordingly, almost any funded project benefits a majority of minority riders. Second, there is no

11 evidence that MTC rejected any of AC Transit's requests for capital projects. (See ILAA.b.) And

12 there is no claim that MTC failed to provide AC Transit with operating funds to which it was 13 entitled. (II.AA.a.) If Plaintiffs are referring to RTP "projected shortfalls," which span a 25 year 14 time period, there is no evidence that these "projected shortfalls" ever become actual, or have any

15 actual effect on a transit operators' budgets. Nor is there evidence that MTC has "failed" to fund 16 the shortfalls, or give AC Transit every bit of operating money it could.4

17

(2) There is No Evidence That More Money Goes to

18

"Disproportionately White Riders"

Plaintiffs allege that pursuant to MTC's "pattern or practice" of discriminatory funding, 19

20 MTC "channels more money and support to projects... that benefit the disproportionately white

riders o/Caltrain alld BART than to projects... that benefit the disproportionately minority riders 0 21

AC Transit." (SAC ~ 67.) MTC also allegedly "intentionally ensages in its policy, pattern, or
22

practice of favoring projects...that benefit the disproportionately while riders o/Caltrain alld

23 BART at the expense of projects... that benefit the disproportionately minority riders of AC Transit

.

24

because. of ... race and national origin..." (Jd.{emphasis added)(Order II at p.7.)
25

26

Unfortunately, Plaintiffs have no evidence. First, Plaintiffs admit that Caltrain and BART'

27 3 Order II referred to allegations in the First Amended Complaint. Because Plaintiffs subsequently

amended the complaint, the paragraph references are to the same allegations located in the SAC.

28 4 See also MTC's Opposition to Plaintiffs' Motion for Summary Adjudication which discusses this

point in great detail.

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1 ridership are not made up of "disproportionately" white riders, but that Caltrain's ridership is 51%

2 minority, BART's ridership is 54% minority, and AC Transit's ridership is 78% minority.

3 (plaintiffs' MSA at p.5.) Considering absolute numbers or riders, BART actually carries more

4 minority riders (54 million) than AC Transit (50.7 million). (See II.A.2.) There is no evidence tha

5 MTC favors an operator that is "disproportionately minority" by allegedly favoring BART or

6 Caltrain. Second, Plaintiffs cannot show that MTC channels more money to BART or Caltrain or
7 that it favors the projects of these operators at the expense of AC Transit. MTC has not rejected a

8 request from AC Transit for funds to which it would be entitled. (See generally n.AA.)

9 (3) MTC Helps The Transit Dependent

10 Plaintiffs also allege that "MTC... fails to provide equal treatment to projects... for 'transit
11 dependent' riders and AC Transit riders, treating these classifications ofriders as code words for
12 riders ofcolor." (SAC 1167 (emphasis added)(Order 11 at p. 7).) This is unfounded. First, even if
13 MTC did treat "transit dependency" as a classification for riders of color, there is no evidence that
14 MTC does not treat these programs equally. To the contrary. MTC itself initiated the LTN in 2001
15 specifically to address the needs of the poorest residents in the region. It has committed $359
16 million to begin to fund the gaps in service it identified. (II.B.1.) It initiated the CBTP program to
17 allow communities to obtain grants to pay for planning to best address transit gaps. (Jd.) While
18 Plaintiffs may argue that MTC should have done more for this effort, it cannot be disputed that
19 MTC has specifically soug~t to address the needs of the Bay Area's poorest residents.
20

(4) There is No Evidence of Unequal Treatment. 21
And finally. Plaintiffs allege that: MTC's "unequal treatment" of Plaintiffs "on the basis a
22 their race sends the message that, in the eyes of the government, they are not equal participants in
23
the community and are worth less than their white counterparts on Caltrain and BART." (SAC'I
24
72.) AC Transit has been treated more than equally. Moreover, there is no proof that MTC treats
25
the riders of AC Transit differently because ofrace: Caltrain and BART each have a ridership that
26
is over 50% minority; and, BART serves more minorities than AC Transit. (II.A.2.)
27 Based on these undisputed facts, there is no proof of a "stigmatic" injury. There is no
28

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[,

I evidence regarding "alleged discrimination" in the SAC "so immediately apparent as to

2 automatically confer a brand of inferiority upon people of color who use AC Transit" and no proo

3 that "Plaintiffs were denied equal benefits based on a discriminatory classification." (Order I at

4 p.6.) To the contrary, it is undisputed that any alleged discrimination "flows from a facially

5 neutral, complicated funding scheme, not an obviously demeaning classification," id., and there is

6 no evidence that any MTC practice is administered in a "plainly skewed way against a disfavored

7 group as to inflict stigmatic injury sufficient to confer standing." This is especially true, where as

8 here, MTC's decisions affect AC Transit and do not directly affect the riders of AC Transit.

9 Additionally, Plaintiffs have failed to show that there is "a sufficient likelihood" that Plaintiffs will

10 again be wronged in a similar way. Lyons, 461 U.S. at Ill. There is no stigmatic injury here.

II

b. There is No Proof of Economic and Quality of Life Injuries

12

"To establish economic injury, Plaintiff must show ...personal economic harm such as

13 excessive fares or reduced property values." (Order II at p. 8.) Quality oflife injury require~ a

14 "concrete injury" to one's well-being. (Order I at p. 7.) Plaintiffs fail because there is no requisite

15 showing of a quality of life injury or a likelihood of being wronged again. (I1.D.I.c, ILD.2.c.)

16

(1) Increased Fares

17

First, Plaintiffs allege that: "[t]he practices of... MTC have repeatedly forced.AC Transit to

18 increase the fares Plaintiffs and Plaintiff Class members pay for bus service," and that

19 "Plaintiffs...are non-discretionary transit riders with low incomes who have no alternative but to

20 rely on AC Transit bus service" with the higher fares. (SAC ~ 53. (Order II at p. 8.) There is no

21 evidence that MTC has engaged in any practices that have "forced" AC Transit to increase fares.

22 Its Board determines all questions of policy, including setting fares and setting service levels.

23 (ILC.I.) Moreover, there is no evidence of harm from "increased fares." Hain has received a

24 transit subsidy since 2002, see II.D.I, and although Darensburg claims an increase in the price ofa

25 monthly AC Transit pass from $55 to $70, does. this increase outpace inflation? (ILD.2.)

26

(2) Free Bus Pass

27

Next, although Plaintiffs allege that MTC failed to fund a free student bus pass program,

28 (SAC '1~ 54, 61), there is no evidence that AC Transit riders are entitled·to such a program. First,

18

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1 no other operator has such a program; MTC's decision to allocate S1,000,000 to fund AC Transit's

2 pilot program is really preferential treatment. (II.B.2.) Second, AC Transit staff testified that its

3 program "lost money" and was a "disastrous idea." (Id.) Plaintiffs cannot show they were injured.

4 C. 5

Plaintiffs Cannot Prove That MTC Caused Their Injuries. Plaintiffs' asserted injuries arise from "the govemment's allegedly unlawful regulation (or

6 lack of regulation)" ofthird parties that are not before this Court. Lujan, 504 U.S. at 562. In such

7 case, "when the plaintiff is not [itJselfthe object of the govGmment action or inaction [it]

8 challenges, standing is not precluded, but it is ordinarily 'substantially more difficult' to establish."

9 Id. Plaintiff has the burden "to adduce facts showing that th[e] choices of [the intervening

10 independent actors] have been or will be made in sucli a mann'er as to produce causation ....n Id.;

11 see also' Nat'l Wrestling Coaches v. Dep't ofEduc., 366 F.3d 930, 941 (D.C. Cir. 2004) ("the recor

12 [must] present[] substantial evidence ofa c,ausal relationship between the gove~ent policy and

13 'the third-party conduct, leaving little doubt as to causation and the likelihood of redress"). Thus,

14 MTC's actions must constitute a "substantial factor motivating" AC Transit's decision that directl

15 cause the injuries, Tozzi v. U.S. Dep't afHealth & Human Servs.,.271 F.3d 301, 308 (D,C. Cir.

16 2001), and a real and immediate threat of repeated injury.

17

Plaintiffs must show substantial evidence that AC Transit would act differently if the

18 requested relief were granted to prove a sufficient causal relationship. In Tozzi, the court relied on

19 affidavits that "demonstrat[ed]" that the third parties had acted "as a direct result of the

20 [government's] decision." Nat'l Wrestling Coaches, 366 F.3d at 941 (discussing Tozzi). Similarly,

21 in Block v. Meese, 793 F.2d 1303, 1308 (D.C. Cir. 1986), the plaintiffs submitted "several

22 declarations and affidavits detailing specific instances in which" the govemment action motivated

23 the third parties' conduct. Id. (discussing Block). There is no evidence from AC Transit tha~ its

24 actions are motivated by MTC's conduct. Plaintiffs can point to no statement to meet their high

25 burden. See Nat'l Wrestling Coaches, 366 F.3d at 941 (plainti.ffs must adduce "substantial

26 evidence" that leaves "little doubt as to causation and the likelihood of redress").

27

Although Plaintiffs allege that MTC's practices cause their injuries, in the foml of increase

28 fares, service cuts, or public safety, Plaintiffs have failed to point to a single decision that MTC ha

19

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1 made that AC Transit believes is unfair or that serves as a nexus with these alleged injuries. To th

2 contrary, AC Transit testified time and time again that the requests that it made to MTC have

3 systematically been granted. (n.AA, C.2.) Plaintiffs have no evidence to support their claims.

4

1. AC Transit Agrees With MTC's Preventive Maintenance Policy And Has

Received Preventive Maintenance Funding For the Past Eight Years.

5

6

Plaintiffs allege that MTC's preventive maintenance practices caused a reduction in

7 services. This is fantasy. As described in Section ILA.4.c, since 1999, MTC has approved every

8 AC Transit request for preventive maintenance. This was particularly important during the

9 recession. (II.C.2.) Neither Plantiffs nor their expert could quantify AC Transit's eligibility,

10 requests, or receipt of preventive maintenance funds. (ILA4.c.) The policy alluded to that MTC

11 "recently" adopted was agreed to by the consensus of all stakeholders in the region. (Jd.) AC

12 Transit supports this lower priority, because the alternative would mean that BART and MUNI

13 with their greater needs would bankrupt the system. (veit Decl. 1[10. Exh. H, pp. 95: 18-96:4.)

14

Consequently, the evidence shows that: (I) MTC's policy was reached by consensus of all

IS transit operators; (2) AC Transit staff believes that the current scoring policy is appropriate; and,

16 (3) MTC has provided AC Transit with preventive maintenance funds each year for the past seven

17 and AC did not use all that was provided in FY 2006-07. (Il.A.4.c.)

18

2. AC Transit Never Requested Funding for a "Richmond Bus Project."

19

Additionally, Plaintiffs claim that AC Transit would have provided different service if

20 MTC had funded a certain Richmond bus project. The only evidence of a Richmond Bus Project,

21 however, is that a different operator, WestCat, requested and received funding for it. (Il.B.2.) AC

22 Transit never requested this funding; thus, there can be no causation.

23

3. MTC Does Not Improperly Channel Capital Funds to Rail.

24

Plaintiffs also allege that by channeling disproportionate sums of available capital funds to

25 rail projects, "which have alternative fund sources for which they are eligible," MTC "limits the

26 pool of funds available to improve bus service through new projects." (SAC 1]62.) First, most

27 capital funds are fOl11lula based; AC Transit has received its appropriate share. (ILAA.b.) Second,

28 MTC has assisted AC Transit in getting all its capital projects funded. (ld.) Moreover, AC Transit

20

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1 is not eligible for federal rail capital project funds, a significant portion of which is eannarked by

2 Congress by the "New Starts" program. (Id.)

3

4. MTC Is Not Responsible For Funding AC Transit's "Strategic Vision."

4

Finally, Plaintiffs allege that to the extent that MTC does not provide "additional funds" to

5 AC Transit so that it can implement its Strategic Vision plan, part of its SRTP, AC Transit will be

6 unable to implement its plan, and Plaintiffs will not receive these benefits. (SAC '157.) Yet, there 7 is no evidence that MTC has not given or helped AC Transit obtain what it wants. (II.AAwC.)

8 Also, AC Transit already protects the "lrunk lines" in its service district. And its demonstrated

9 policy regarding service is to prioritize demand over geographic equity. (II.C.2.) l O I n short, Plaintiffs have failed to adduce "substantial evidence" leaving little doubt that

II MTC caused Plaintiffs injuries. Nat'l Wrestling Coaches, 366 F.3d at 941. AC Transit is an

12 independent body that decides its service levels and determines its fare policy. And there is no

13 evidence that MTC's action had a "determinative" or "coercive" effect on AC Transit's decisions

14 regarding provision of transit service to Plaintiffs' disadvantage. See Bennett v. Spear, 520 U.S.

15 154,168 (2000); see also Nat'l Wrestling Coaches, 366 F.3d at 941. Nor is there evidence ofa

16 "real and immediate threat of repeated injury." O'Shea, 414 U.S. at 496. Plaintiffs fail again.

17 D. 18

This Court Cannot Redress Plaintiffs' Injuries.. For redressability, a plaintiff must show that "absent the [challenged policy], there is a

19 substantial probability that ... if the court affords the relief requested, the asserted [injury] will be

20 removed." Warth v. Seldin, 422 U.S. 490, 504 (1975). "Relief that does not remedy the injury

21 suffered cannot bootstrap a plaintiff into federal court; that is the very essence of the redressability

22 requirement." Steel Co. v. Citizens/ora Better Ellv't, 523 U.S. 83, 98 (1998). Redressability 23 requires "that prospective relief will remove the harm" and plaintiffs must show that they "would

24 benefit in a tangible way from the court's intervention." Lujan at 508; Graham. 149 F.3d at 1003.

25

Here, Plaintiffs seek an order enjoining MTC from "making any funding decision that has

,.

26 an unjustified disproportionately adverse impact on AC Transit riders of color. .." and "supporting

27 the funding of or funding any improvement or expansion in service that detracts from the equitable

28 funding of services that benefit AC Transit riders," (SAC Prayer ~'I 5·6.) At the pleading stage,

21

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Plaintiffs alleged that the amount of service that AC Transit provides to Plaintiffs "would grow if [

2 MTC provided AC Transit with additional operating funds and flexibility," SAC 'i\47, and that if

3 MTC "ceased its discriminatory... practices, AC Transit would provide improved seryices and/or

4 reduced fares that would directly benefit Plaintiffs...," SAC'J 56. Yet, Plaintiffs have failed to

5 identify a link between MTC's funding practices and what AC Transit's riders experience. Thus,

6 there is no evidence ofa practice that MTC should "cease" that would result in benefits to Plaintif

7

First, it is undisputed that AC Transit is an independently governed organization, which ha

8 its own policies regarding service deployment, and there is no likelihood that the Court could

9 redress Plaintiffs' specific injuries. (lLC.) Second, there is no evidence of a practice that MTC

10 should "cease." It is undisputed that MTC has granted all requests from AC Transit to which it

11 was entitled and eligible. (II.A.4, B.) Third, the amount of transportation funding available is

12 dependent on the economy and government decisions outside ofMTC's control.

13

1. AC Transit Controls its Service And There [s No Evidence That Service Cuts

Harmed Plaintiffs. 14

Even if the Court ordered MTC to "cease" its practices, Plaintiffs' condition would not

15

change. AC Transit has the final sayan how it spends funds received from MTC as well as other

16

sources. (II.C.) AC Transit might reinstate service that it actually cut "in the hills" away from the

17

trunk lines or in areas benefiting other residen~s of Alameda and Contra Costa counties.

18

Plaintiffs have failed to specify which funds that MTC allocates fund the service that

19 Plaintiffs use. According to AC Transit, the cuts during FY Z003-045 totaled 14%. (II.C.Z.) Sinc

20

June 2004, however, AC Transit has only added service. (Veit Dec!. ~8, Exh. F at 12:19-23.) And

21

aside from asserting that three or four routes of the Plaintiffs were changed, Plaintiffs have not set

22

forth evidence that the 14% cuts actually hanned them, let alone the class of minority riders of AC

23

Transit. In fact, ridership for FY Z003-04 increased 4% since FY 2002-03. (II.C.Z~)

24

Moreover, Plaintiffs have no evidence that MTC's funding practices have a detenninative

25

effect on how AC Transit actually allocates its funds. Rather, in making cuts during FY 2003-04,

26

27 5 Because the alleged discrimination of which Plaintiffs complain must have occurred in within tw years from when the Complaint was filed on April 19,2005, the actionable time period dates back
28 to April 19, 2003. No alleged cuts or decisions that pre-date this time period are relevant.

22

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AC Transit cut the least productive service. It preserved the trunk lines, which are the most heavil

2 traveled routes through Berkeley and Oakland, and cut service in areas in which the Plaintiffs do

3 not reside. (Veit Decl. '18, Exh. F at 22:2-23, 23:7-11.) "AC Transit will allocate service primaril

4 on the basis of demand.. .over geographic equity." (II.C.2.) AC Transit is guided by Board Policy

5 550 in making service changes and not AC Transit's Strategic Vision Plan, on which Plaintiffs

6 rely, SAC 'i\54. The goals in the Strategic Vision cannot support Plaintiffs claim of redressability.

7

Similarly, AC Transit is not basing its future plans solely on MTC. In fact, the Strategic

8 Vision seeks to obtain funding from several different entities, only one of which is MTC. (Skowb

9 Decl. 'i\7 Ex. D.) Moreover, AC Transit staff has not taken issue with any specific funding practice

10 by MTC; to the contrary, they are grateful for MTC's efforts in bailing them out of a budgetary

11 crisis using § 5307 funds, sentiments which remain true today (!d. '18, Exh. E, see generally II.C.2.

12 Plaintiffs cannot prove that this Court can redress Plaintiffs' alleged hanns.

13

2. There is No Evidence That MTC Has Failed To Fund Proje.cts Supporting AC

Transit's Minority Riders.

14

Next, Plaintiffs claim that ifMTC refrained from its discriminatory funding practices, it

15

would instead and has repeatedly declined to support and fund projects and programs that improve

16

18 ever declined to support programs or projects for transit dependent and inner city/urban dwellers.

19

20

•• MTC Initiated the Lifeline Tr;msportation Network.

In fact, the evidence shows just the opposite. MTC itself initiated the Lifeline

21 Transportation Network Report in 2001, specifically to address the needs of the transit dependent
22
in the region. It has committed $359 million to begin to fund the gaps in service it identified. 23
(l1.B.1.) The riders ofAC Transit are indeed being served by MTC's efforts.

24

h. MTC Funded The Richmond Bus Project.
25 Plaintiffs' other "example" is the allegation that MTC failed to fund AC Transit's bus
26

project in the Richmond area. (SAC '152.) The project that MTC identified as most cost-effective

27 in the 2001 RTP was the 302 Route run by WestCat, another bus operator in Richmond, which
28

23

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1 MTC funded. (ILB.2.) Thus, this decision cannot be "redressed."

2

c. MTC's Policy Regarding Preventive Maintenance Docs Not Harm

Plaintiffs. 3

Finally, Plaintiffs cannot prove up their allegations that AC Transit previously used federal

4 § 5307 funds flexibly to benefit Plaintiffs, that any alleged curtailment of these funds hanned
5 Plaintiffs, or that the restoration of flexibility would improve services. Iildeed, MTC has

6 continuously made exceptions to its consensus-based policies to provide flexible § 5307 formula
7 funds to AC Transit. (II.A.4.c.) In fact, AC Transit was the leading recipient from FY 2001-2006.

8 (Id.) Moreover, even ifMTC permitted AC Transit to continue to use § 5307 for preventive
9

maintenance, these funds would not flow to improve the service on which Plaintiffs depend. For

10
example, even though MTC programmed S13 million to AC Transit in § 5307 funds in FY 2005II
2006 through MTC Resolution No. 3714, AC Transit did not use all the funds for operations. (Jd.)

12

3. Redressability is Too Speculative For the Court To Grant the Relief S-ought. 13
Plaintiffs lack standing here because redressability is too speculative. AI/ell, 468 U.S. at

14 758; Simon, 426 U.S. at 43; Warth, 422 U.S. at 490. There is on.ly a specific amount of
15 transportation funds tliat come to the region each year. It is undisputed that this amount depends 01
16 market economic forces outside ofMTC's control. Specifically, operating furids, like TDA, STA

17 and A.B. 1107 funds, on which AC Transit relies, come from state sales tax revenues. (ILAA.c, C.

18 Thus, these funds are inherently uncertain, as was seen during the 2002 recession. (II.C.2.) This

19

amount is also dependent on how much money the federal government appropriates to federally 20
funded projects. (II.AA.) These factors alone render the relief sought too speculative.

21
In addition, while MTC is required by statute to carry out the transportation planning
22

process, 23 U.S.C. § 134, Congress gave MTC wide discretion to implement funding decisions.
23
According to a federal guidance, federal agencies largely defer to state and local governments with
24 respect to the requirements, like fiscal constraint, in long range planning. See 23 C.F.R: §§

25 450.322(b)(lI) FHWAIFTA Fiscal Guidance dated July 26.2005.) MTC creates policies
26 regarding funding decisions built on consensus of all stakeholders in the region. For example,
27 MTC's "Fix it First" policy prioritizes the most critical capital in the region for all operators based
28

24

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1 on a unifonn criteria based on the life-cycle of assets and agreed to by a consensus of participating

2 operators, including AC Transit. (McMillan Decl. at ~7.)

3

Obviously, this process was not designed to hann bus operators, including AC Transit, but

4 to provide a measure of consistency in setting investment priorities for limited funds that must be

5 shared. (Id.) And while MTC's processes and policies may seem to emphasize funding capital, thi

6 is only reflective of the sources of available dollars. There is a shortage of operating dollars.

7 Transportation funding is a "zero sum game," meaning that any additional money that MTC gives
8 to AC Transit would need to be taken from another stakeholder in the region. (Id. '1_,)

9

Moreover, courts are not the proper forum to address complex social issues like

10 transportation funding. Dandridge v. Williams, 397 U.S. 471, 487 (1970). Like welfare benefit

11 policies in Dandridge, public transportation planning presents a myriad of "intractable economic,

12 social, and even philosophical problems." Id. Indeed, the very complexity of the problems of

13 planning, financing and managing the Bay Area's transportation network system suggests that

14 "there will be more than one constitutionally pennissible method of solving them," Sail AI/tollio

15 Indep. Sell. Dist. v. Rodriguez, 411 U.S. 1,42-43 (1973). An order from this Court directing MTC

16 to be more fair or more equitable, thus, will do little to alleviate AC Transit's difficulties.

17

With no identified filllding decision showing that MTC has not been "fair" or "equitable,"

18 the Court would have no basis from which to determine wha~ to change. This is especially true

19 given the incredibly complex and diverse landscape of interests MTC serves. "Plaintiffs cannot

20 es~ablish standing by requesting relief that the Court lacks the authority to grant, as well as any

21 means for monitoring defendants' compliance, and then insisting that such a purely hypothetical

22 and unrealistic remedy would redress their injuries." Long Term Care Pharmacy AI/iance v.

23 Leavitt, 530 F,Supp.2d 173 (D, D,C, 2008),

24

Suits like this one, which challeng[e] not specifically identifiable Government violations 0

25 law[] but the particular programs agencies establish to carry out their legal obligations" present

26 "obvious difficulties insofar as proof of causation or redressability is concerned, "and they are

27 therefore "rarely if ever appropriate for federal-court adjudication." Lujan, 504 U.S. at 568. This

28 case falls squarely within the purview of this rule.
25
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1 DATED: April 22, 2008 2 3 4 5 6

HANSON, BRIDGETT, MARCUS, VLAHOS & RUDY, LLP
~~ By: KIM()MJJiOLlUS JUL H. VEIT Attorneys for Defendant METROPOLITAN TRANSPORTATION COMMISSION

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NOT. OF MOT. & MOT. FOR SUMMARY JUDO. AGAINST PLTFS. AND PLTF. CLASS FOR
LACK OF STANDING; Case No. C 05 01597 EDL

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 Case3:05-cv-01597-EDL Document195 Filed04/23/08 Page1 of 31

I HANSON BRlDGEIT LLP KIMON MANOLIUS -154971
2 WARREN WEBSTER - 209540 JULIA H. VEIT - 209207
3 425 Market Street, 26th Floor San Francisco, CA 94105
4 Telephone: (415) 777-3200 Facsimile: (415) 541-9366
. 5 kmanolius@hansonbridgett.com

6 FRANCIS F. CHIN - 059231 CYNTHIA E. SEGAL - 179636
7 Metropolitan Transportation Commission Joseph P. Bort Metrocenter
8 101 8'" Street Oakland, Ca 94607-4700
9 Telephone: (510) 817-5700 Facsimile: (510) 817-5848
10 fchin@mtc.ca.gov

11 Attorneys for Defendant METROPOLITAN TRANSPORTATION COMMISSION
12 UNITED STATES DISTRICT COURT
13 FOR THE NORTHERN DISTRICT OF CALIFORNIA
14

15 SYLVIA DARENSBURG, VIRGINIA
16 MARTINEZ, and VIVIAN HAIN; individuals on behalf of themselves and all
17 others similarly situated;
AMALGAMATED TRANSIT UNION 18 192; COMMUNITIES FOR A BEITER
ENVIRONMENT,
19 Plaintiffs,
20 v.
21 METROPOLITAN TRANSPORTATION
22 COMMISSION,

No. C 05 01597 EDL
DEFENDANT'S MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT OR IN THE ALTERNATIVE PARTIAL SUMMARY JUDGMENT
Date: June 24, 2008 Time: 9:00 a.m. Judge: . Honorable Elizabeth D. Laporte Trial Date: October 1,2008

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Defendant.

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TABLE OF CONTENTS
Page INTRODUCTION ...............................................................................................................2 FACTUAL BACKGROUND ..............................................................................................2 A. The Metropolitan Transportation Commission and the Bay Area ........................... 2
1. MTC's Mission and Statutory Authority .....................................................2 2. MTC's Racially Diverse and Complex Jurisdiction ....................................2 3. MTC's Long Range Planning Activities .....................................................3 4. Capital vs. Operating Funds........................................................................ .4
5. MTC Discretionary Funds ........................................................................... 4 6. Bay Area Transit Operations Provide Complimentary, Not
Competitive Services ................................................................................... 4 B. AC Transit Autonomy, Service Changes and Ridership Gains ............................... 5
1. AC Transit Alone Determines Its Service Deployment.. .............................5 2. Service "Cuts" Cannot Be Attributed To MTC ...........................................5 3.- AC Transit Service "Cuts" Protected Heavily Minority Trunk
Routes and Increased Ridership ............................:..................................... 6 C. Plaintiffs' Statistical Case ........................................................................................ 7 D. MTC's Statistical Evidence ..........................:.......................................................... 8 E. Individual Plaintiffs' Are Both AC Transit and BART Riders ............................... 8
1. PlaintiffDarensburg..................................................................................... 8 2. Plaintiff Hain................................................................................................9 F. The Federal Transportation Administration (FTA) Complaint-Driven Title VI Investigation ....................................................................................................... 9 G. Accusations and AC Transit's GM Response........................................................ IO PROCEDURAL BACKGROUND ................................................................................... 10 MOTION FOR SUMMARY JUDGMENT LEGAL STANDARD.................................. II ARGUMENT ..................................................................................................................... 12 A. Federal Claims ....................................................................................................... 12 1. Plaintiffs Cannot Show Any Intentional Discrimination And Thus
Their Federally-based Claims Fail as Matter of Law ................................ 12 B. California Government Code § I I 135 ................................................................... I4 C. Disparate Impact .................................................................................................... 15
1. Plaintiffs Have Not Demonstrated an Actual Policy or Practice on Which This Suit Can be Based .................................................................. I5
2. The Definite and Significant Adverse Impact Must be Demonstrated on a Protected Class ........................................................... 16
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I

TABLE OF CONTENTS

(continued) 2

3

a. Plaintiffs Do Not Allege That An MTC Policy or Practice

.

Favors One Race Over Others ....................................................... 18

4

b. Plaintiffs Ignore the Fact That More Minorities Ride BART

5

and Caltrain Than AC Transit and Impermissibly Dismiss The Supposed Impact MTC's Alleged Policies Also Have

6

On Minority BART and Caltrain Riders........................................ 18

c. Both Class representatives Enjoy the Supposedly

7

Illegitimate "Benefits" Conferred Upon BART riders ..................20

8

3. A Prima Facie Case Requires a Definite, Significant Adverse Impact Taking Into Account All Relevant Bases of Comparison .............20

9

a. Plaintiffs Do Not Justify Their Limited Comparison Of AC

Transit to BART and Caltrain ........................................................ 22

10

b. Even in the Limited Comparison Grouping, Plaintiffs Faillo

II

Demonstrate a Reliable Indication of Disparate Impact................ 23

(i) Plaintiffs Provide No Evidence or

12

Comparisons of "Higher Fares"................. 24

13

(ii) Plaintiffs Provide No Evidence or Compan.s.ons 0 fTransl.t "Qua'I·ty" ............. ?_4

14 15 16 17
18 VI.

(iii) Plaintiffs Purported Comparisons of "Quantity" are Inadequate ......................... 24
c. There is No Correlation Between Race and MTC's Discretionary Funding ................................................................... 25
D. Plaintiffs specious Claims invites this court to substitute itsjudgmcnt for that of state and federal governments, MTC, local governments and politicians, Transit Agencies, and voters .............................................................. 25
CONCLUSION.................................................................................................................. 26

19

20

21

22

23

24

25

26

27

28

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I

TABLE OF AUTHORITIES

2

3 Cases

4 Agarwal v. Arlhur G. McKee & Co., 19 Fair Empl. Prac. Cas. (BNA) 503; 16 Empl. Prac. Dec.

5

(CCH) P8301 (ND Cal. 1977) .................................................................................................... 17

Alexander v. Sandoval, 532 U.S. 275 (2001)...................................................................... 12, 13,21

6 Alliance v. Giulliani,214 F.3d 65, 70 (2nd Cir., 2000) .......................................... 18, 19, 22, 24, 27

7 Celolex CO/po v. Calrell, 477 U.S. 317 (1986) ............................................................................... 12

8 City oJCuyahoga Fallsv. Buckeye Comm. Hope Foundation, 538 U.S. 188, 195 (2003) ............ 13

Committee Concerning Community Improvement ef al., v. City ojModes/o, et af., 2007 U.S. Dist.

9

LEXIS 50258 at 16 ......................................................................................................... 13, 14. 15

10

Committee Jor a Better North Philadelphia v. Southeastern Pennsylvania Tram.p. Authority, 1990 U.S. Dist. LEXIS 10895 (ED Pa.) ........................................................................................ 15, 26

II Criley v. Della Air Lines. Inc., 119 F.3d 102 (2nd Cir. 2007) ............................................ 19, 20, 21

12 Dandridge v. Williams, 397 U.S. 471, 487 (1970) ................................................................... 26, 27 Gamble v. City ojEscondido 104 F.3d 300, 306 (9th. Cir. 1997) .................................................. 21
13 Garcia v. Spun Sleak Co., 998 F.2d 1480, 1486 (1993) ........................................................... 17, 21

14 Gay v. Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 555 (9th Cir. 1982)..........................27

15 George Frank, el 01. v. Co. ojLos Angeles, el 01., 149 Cal.App. 4th 805, 818 (2007) ..................20

Hispanic Taco Vendors oJWashinglon el 01. v. City oJPasco, 994 F.2d 676,679 (9th Cir. 1993)

16

.................................................................................................................................................... 12

17 Improvemenl el 01., v. City ojModeslo. el 01., 2007 U.S. Dist. LEXIS 39099 at 17 ......4, 13, 14, 15 Kalz v. The Regenls oJlhe University oJCali/omia. el 01. 229 F.3d 831 (9th Cir. 2000) ..............20
18 Lany P. v. Riles, 793 F.2d 969 (9th Cir. (1984)............................................................................. 16

19 McDonnell Douglas COIp. v. Green, 411 U.S. 792, 802-06 (1973) ............................................... 18

20 NAACP v. Medical Cenler. Inc., 657 F.2d 1322, 1332 (3rd Cir. 1981 )..........................................21

New York City Envir. Juslice Alliance v. Giulliani, 214 F.3d 65, 70 (2nd Cir. 2000).18, 19, 22, 24,

21

27

22 New York Urban League v. Pataki, 71 F.3d 1031 (2nd Cir.1995) ......................... 16, 18, 19,22,23
Rose v. Wells Fargo & Co.. 902 F.2d 1417, 1424 (9th Cir. 1990) ........................................... 17, 18 23 San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,42-43 (1973) ..........................................26

24 Soulh Bronx CoalitionJor Clean Air v. Conroy, 20 F.Supp.2d 565, 572-3 (SO N.Y. 1998) .........22

25 SIOIlI v. Poller 276 F.3d 1118, 1121 (9th Cir. 2002) ...................................................................... 17 The Epileptic Foundalion v. City & Co. ojMaui, 300 F.Supp.2d 1003, 1011 (D. Haw. 2003) ..... 12
26 Village ojArlinglon Heighls v. Metropolilan Housing Dev. CO/p., 429 U.S. §252, 266, .............. 13

27 Wards Cove Packing Co v. Atonio, 490 U.S. 642 (1989) ................................................... 15,16,18

28

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I

TABLE OF AUTHORITIES

(continued)
2

3 Statutes

4 Fed.R.Civ. P. 56(c) ......................................................................................................................... 12

5 23 U.S.c. § 134............................................................................................................................. 3,4 42 U.S.C. § 1983 .................................................................:......................................................... 3,4
6 49 U.S.C. § 5303 ............................................................................................................................... 3

7 California Government Code_ §§ 65080, 66513, 29532 ............................................................................................................... 3

8 California Government Code

9

§§ 66500 ....................................................................................................................................... 2

California Pub. Utii. Code

10

§ 24883 ......................................................................................................................................... 5

II California Government Code ("GC") § 11135 ............................................................... :... 11, 12, 15 Other Authorities
12 The Equal Protection clause of the Fourteenth Amendment 142 USC § 1983 .............................. 11
l3

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION

2 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:

3

PLEASE TAKE NOTICE that on June 24, 2008 at 9:00 a.m. in Courtroom _ of the

4 above-entitled Court, located at 450 Golden Gate Avenue, San Francisco, California, Defendant

5 Metropolitan Transportation Commission ("Defendant" or "MTC"), through its attorneys, Hanson

6 Bridgett LLP, will and hereby does move this Court for summary judgment in its favor in this

7 action brought by Plaintiffs Sylvia Darensburg and Hairr on behalf of the plaintiff class

8 ("Plaintiffs").

9

This motion is made on the grounds that plaintiffs have no evidence to establish

10 intentional discrimination by MTC, nor do plaintiffs have the necessary evidence of disparate

11 impact to shift the burden to MTC to justify its policies or funding allocations.

12

This motion will be and hereby is based on this Notice of Motion and Motion (including

13 the supporting Memorandum of Points and Authorities); the Declarations of Warren R. Webster 14 and others filed herewith, the Request for Judicial Notice filed herewith, all pleadings and papers

15 on file in this action any other matters of which judicial notice may be taken by the Court, and

16 upon such oral argument and documentary evidence as may be presented at or before the hearing.

17 18 19 20 21

22 23

24

25
26

27

28
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1

I. INTRODUCTION

2

MTC is the Bay Area's Metropolitan Planning Organization. MTC's Regional

3 Transportation Plan ("RTP") is the primary transportation planning and financing document for

4 the entire Bay Area and the twenty six operators operating therein. The RTP reflect region-wide

5 policies and planning. Nevertheless, Plaintiffs have cherry-picked three operators, none of which

6 are parties to this action, and moreover, purport to compare them. But, Plaintiffs ignore the fact

7 that their artificially chosen target, BART, alone carries more members of the protected class "at

8 issue than AC Transit. Moreover, Plaintiffs fail to offer ajustifiable statistical analysis

9 demonstrating a significant and adverse effect on a protected class. They simply recite the relative

10 percentage of minority riders each of these transit operators carries. Thus, whether analyzed

11 under an 'intentional discrimination' or 'disparate impact' standard, Plaintiffs' claims fail.

12 13 A.

II. FACTUAL BACKGROUND
The Metropolitan Transportation Commission and the Bay Area

14

1. MTC's Mission and Statutory Authority

15

MTC is a metropolitan planning organization ("MPO") that provides comprehensive

16 transportation planning for the region comprised of the nine Bay Area Counties. Cal. Gov. Code

17 §§ 66500 et. seq. This MPO region includes 10.1 cities with 3 major airports, 5 public ports, 8 toll

18 bridges, dozens of highways, hundreds of miles of bicycle and pedestrian routes, thousands of

19 buses, cable cars, rail cars, and ferries, thousands of miles of local streets and roads, and over two

20 dozen independently governed transit operators. (Declaration of Julia Veit Decl. ("Veit Decl.") at 21 ~ 3, Exh. A (RFA Nos. 8-16.))

22

2. MTC's Racially Diverse and Complex Jurisdiction

23

MTC operates in a very complex institutional landscape, more complex than any

24 [transportation planning, finance and operational] setting ...across the United States. (Declaration

25 of Warren Webster ("Webster Dec!.") at ~6. Exh D (Robert Cervera Deposition, p.155-156).)

26 MTC is not a transit operator. (Veit Dec!. at ~ 5, Exh. A (RFA No.4), Rather, twenty-six

27 independently governed agencies operate transit service in the Bay Area. (Veit Decl. at '13, Exh.

28 A (RFA No. 16). (Declaration of Robert CeTTera ("CeTTera Dec!.") at ~4, Exh. A, p.6).) Three

1
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1 transit operators provide rail service, 16 provide bus service, 1 operates ferry service, 3 operate

2 either bus and rail or bus and ferry service. (Declaration of Therese McMillan ("McMillan'

3 Dec!.") at ~ 3, Exh. A.) The Municipal Railway ("MVNI"), Santa Clara Valley Transit Authority

4 ("VTA"), San Mateo County Transit District ("SamTrans"), Peninsula Corridor Joint Powers

5 Board ("Caltrain"), Golden Gate Bridge Highway and Transportation District ("GGT"), Bay Area

6 Rapid Transit District ("BART") and Alameda Contra Costa Transit District ("AC Transit") are

7 the seven largest operators in the region. (McMillan Dec!. at ~ 3, Exh. B at p. 8 .)

8

In its 2006 "MTC Transit Passenger Demographic Survey," MTC assessed the racial

9 ridership ofthe Bay Area's transit operators. (Declaration of Therese McMillan ("McMillan

10 Dec!.") at ~ 4, Exh. B.) The Demographic Survey shows that Bay Area transit operators have

11 very diverse riderships; of the 21 operators surveyed, 19 have a minority ridership of 50% or

12 more. (fd.) While the results of the Demographic Survey indicate that AC Transit has the highest

13 percentage of minority riders at 78%, 5 of the other 6 largest operators have at least 50% minority

14 ridership: VTA (70%), SamTrans (70%), MUNI (58%), BART (53%) and Caltrain (50%).

15 (McMillan Decl. at ~ 5, Exh. B.) Only GGT, at 38%, does not. (Id.) In terms of absolute annual

16 numbers, MUNI, BART, and AC Transit serve approximately 220 million, 100 million, and 65

17 million passengers, respectively. (McMillan Decl at ~ 3, Exh. A); Plaintiffs' Motion for

18 Summary Adjudication at p. 5.) BART therefore serves some 53 million minority riders, MUNI

19 serves some 127 million minority riders, and AC Transit carries about 50.7 million minority

20 riders. (McMillan Decl. at ~ 5, Exh. B.)

21

3. MTC's Long Range Planning Activities

22

Every four years, MTC is required to adopt and submit an updated Regional

23 Transportation Plan ("RTP") See 23 U.S.C. § 134; 49 U.S.C. § 5303; Ca!. Gov. Code §

24 65080.Ca!. Gov. Code §§ 65080, 66513, 29532. The RTP's establishes thc financial foundation

25 for how the Region invests in its transportation system by identifying how much money is

26 available to address critical transportation needs and sets the policy on how this funding is to be

27 spent on transportation needs. (McMillan Decl. ~ 3 and Exh. A, pp. 1-2 (2007 Transportation

28 Improvement Plan ("2007 TIP"); see also SAC 12:23-26.) It is also is a regional long-range

2
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l' transportation plan and a prerequisite for the Bay Area's projects' qualification for federal funds.

2 23 U.S.C. § 134(g). The current RTP, adopted in 2005, is entitled Transportation 2030. MTC is

3 now preparing the 2009 RTP.

4

4. Capital vs. Operating Funds

5

As an MPO, MTC programs certain transportation funds, and allocates others. Different

6 rules govern each funding source. Transportation funds fall into two broad ca!egories, operating

7 and capital, and come from two major sources, federal and non-federal. (McMillan Dec!. at ~ 10.)

8 In almost all cases, funds available for operations are from non-fede!al sources; while the great

9 bulk of capital funds come from federal sources. Except for situations where operational

10 maintenance expenses can be capitalized, "capitalized maintenance," transit operators generally

11 cannot utilize capital funds for operational expenses. (ld.)

12

5. MTC Discretionary Funds

13

Depending in the funding source, MTC has varying levels of authority to program and

14 distribute those funds. Since 2002-03, MTC has published a Discretionary Funding Report

15 reflecting the allocations of funds over which MTC has control. J From 2002-03 through 2005-06,

16 MTC provided AC Transit with $484,156,098. (Declaration of Stefan Boedeker ("Boedeker·

17 Dec!.") at ~4. Exh A (Expert Report p.I6).) BART and Caltrain received less $290,175,760 and

18 .$208,504,479, respectively. (Id.). AC ranked second to MUNI in total discretionary funds

19 received. (ld.).

20

6.. Bay Area Transit Operations Provide Complimentary, Not Competitive

Services 21
Transportation dollars are scarce. (McMillan Dec!. at ~6) While MTC, as the MPO for
22

the region, does seek funding for the region, transportation funding is often a zero sum game and 23
all twenty plus transit operators have unmet needs. (McMillan Dec!. at ~6). Thus, while all 24
individual transit operators in the Bay Area vie for scarce resources at the public transit funding

25 level, for passengers these transit operations serve more to create a complimentary (cooperative

26 and interconnected) network than as competitors. [Declaration of Robert Cervero ("Cervero

27

I The timing and contents "discretionary funding" reports are mandated by a settlement 28 agreement between MTC and Communities for a Better Environment et al. from a 2002 lawsuit.

3
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1 Decl.") at ~5. Exh B (Rebuttal Report, sec. V p.18-24), Webster Decl. ~6. Exh D (Cervero

2 Deposition, p. 101-102)]

3 B.
4 5

AC Transit Autonomy, Service Changes and Ridership Gains I. AC Transit Alone Determines Its Service Deployment AC Transit runs busses in Alameda and Contra Costa counties, as well as Transbay

6 service over the Bay and Dumbarton Bridges. (Veit Decl. at ~3, Exh. A (RFA Nos. 84-86);

7 Webster Decl. at . 84-86, Spencer Depo. at 13:6-19).) AC Transit connects with nine other bus

8 systems, 21 BART stations, six Amtrak ~tations, and three ferry terminals. (Veil Decl. at ~3, Exh.

9 A (RFA Nos. 87-90.) AC Transit has a Board of Directors, "the legislative body of the district

10 and determines all questions of policy." Id. § 24883; see also §§ 24884-5, 24885, 24506. The

11 Board, of course, is "responsible for the budget. .. They set fares and they decide on service levels,

12 among other things." (Veit Decl. at ~4, Exh. B. (Rubin Depo. 33:23-34:6.) AC Transit's Board

13 Policy 550, "Service Standards and Design Policy," governs the allocation and distribution of

14 service, including the December 2003 cuts. (Declaration of Nancy Skowbo ("Skowbo Decl.") at

15 ~5, Exh. B. (Board Policy No. 550, GM Memo 04-283a); Veit Decl. at ~8, Exh. F (Bruzzone

16 Depo.at 20:4-22) AC Transit considers route productivity when looking at cuts. (Veit Decl. at

17 ~8, Exh (Bruzzone Depo. 19:25-20:9).) This is sound policy. (Veit Dec!. at ~4, Exh. B (Rubin

18 Depo. at 57:4-59:1.)

19

2. Service "Cuts" Cannot Be Attributed To MTC

20

AC Transit cut service between June 2003 and June 2004 by about 14% (Veit Dec!. al'~8,

21 Exh. F (Bruzzone Depo. at 12:19-13:9), McClain Dec!. at L Exh. A p. vi.), but Plaintiffs' expert

22 believes that the cuts were 10% in Vehicle Revenue Miles (VRM). (Veit Dec!. at ~4, Exh. B

23 (Rubin Depo. at p. 184:15-185:3.). AC Transit's FY 2003-04 cuts were due to the recession.

24 (Skowbo Decl. at ~7, Exh.D ("SRTP Ch.l ").) The recession battered transit operations because
25 40% of operating revenues come from sales tax revenues. (McMillan Decl. at '14 I, Exh. Z (Res.

26 3525).) AC Transit's SRTP, its plan for FY 2003-2012, provides:

27

[m]ost of AC Transit's operating program revenue originates from

fuel, sales, property, or other related taxes and fares ... the

28

recession ... increased unemployment and stalled consumer spending

4
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1

[and] decreases in sales tax revenue. Ridership declined by 10%

between FY 2001-02 and FY 2002-03, and fare collections are

2

down. The current economic downturn has had a significant

negative impact on District funding ....The region relies heavily on

3

sales tax revenues for transit operations, and economic indicators

do not forecast a strong recovery for the San Francisco Bay Area

4

for FY 2003-04 or FY 2004-05.

(Skowbo Dec!. at ~7, Exh.D ("SRTP").)

5

3. AC Transit Service "Cuts" Protected Heavily Minority Trunk Routes and

6

Increased Ridership

7

As to Dec. 2003 and June 2004 cuts, AC Transit:

8

We protected the trunks. We protected the low income areas. We

mostly cut service up in the hills, and we had done analysis previous

9

to that that basically said if we protected the trunks, we were

protecting most of the low income riders. We were also protecting

10

most of the riders anyway....[w]e mostly cut low priority

lines....we have a list of performance by routes, and we just started

11

at the bottom up and worked our way up.

12 (Veit Dec!. at ~8. Exh. F (Bruzzone Depo. 22:2-23, 23:7-11) (emphasis added).) With the cuts,

13 ridership increased 4% in FY 2003-04 and fare box recovery also increased. (Veit Oed. at ~8,

14 Exh. F (Bruzzone Depo. 33:19-24), McMillan Dec!. at ~3, Ex. A (Statistical Summary).):

15

we cut service in places where very few people were taking the bus

and we protected it where they were ....1 think the economy started

16

taking an upturn, and so where we protected the service, people

were able to keep riding the bus or start riding it some more .... My

17

recollection is that ridership did start creeping up.

18 (Veit Dec!. at ~8, Exh. F (Bruzzone Depo. 33:19-34:12) Thus, service cuts do not "weaken" the
19
system. (Bruzzone Depo. at 51 :11-23.)("itjust gets rid of stuff that they should have got rid ofa 20
long time ago.").) 2 Since June 2004, AC Transit has only added service. (Veit Dec!. at ~8, Exh. 21
F (Bruzzone Depo. at 12:19-23.)
22
Other operators were not so fortunate. For example, SamTrans, a San Mateo bus operator, 23
cut its VRM by some 8.5% and lost 12% of its ridership over the same two-year period. 24
Declaration of James DeHart ("DeHart Decl.") at ~ 3-8.) GOT, a bus operator in Marin County 25
and the only large operator with a predominantly non-minority ridership, cut its service by 35%
26

27

2

AC Transit c6nducted a Title VI report on the cuts it made in this period. (Skowbo Oecl.

28 at ~6, Exh. C.)

5
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(Vehicle Revenue Miles (VRM» and lost 21 % of its ridership from 2002-2006. (Declaration of 2 Zahradnik ("Zahradnik Dec!.") at ~ 2-6; Statistical survey.)'

3 C. 4

Plaintiffs' Statistical Case Plaintiffs statistical expert, Richard Berk, undertook no statistical analyses of any policy

5 or practice associated with MTC. (Webster Decl. at ~3, Exh.A (Richard Berk Deposition, p.

6 97:7-24» Instead, as Mr. Berk readily conceded, he only was asked to address two questions: (1)

7 . "[WJhether adverse policies or funding decisions affecting AC Transit would disproportionately

8 affect minority riders," and (2) "[WJhether adverse policies or funding decisions affecting AC

9 Transit would burden its minority riders more than adverse policies or funding decisions affecting

10 BART and Caltrain would burden their minority riders." (Webster Decl.at ~4, Exh. B (Berk

II Report, p.I); Webster Dec!. at ~3. Exh. A (Berk Depo.• p. 133:21-134:7).)

12

As to the first question, Plaintiffs statistical expert found that AC Transit's ridership was

13 between 68 and 78% minority [Webster Decl. at ~4, Exh B (Berk Report, p.2)], and concluded

14 that MTC "policies or practices adversely affecting AC Transit['s] service alone" would

15 "disproportionately affect minority riders." (Webster Decl. at ~4, Exh. B (Berk Report p.3).) Mr.

16 Berk was unaware of any MTC "adverse policy or funding decision" that would affect any transit

17 operator (speculating, at his deposition, that it may include "things like the training of bus 18 drivers") let alone one that would only affect AC Transit. (Webster Decl. at ~3, Exh. A (Berk

19 Depo. p. 29:18-30:17).)

20

As to the second question, Mr. Berk found that the differences in relative racially minority

21 riderships among AC Transit (68-78%), BART (48-54%)and Caltrain (48-51 %), are "statistically

22 significant" and "rea!." (Webster Dec!.at ~4, Exh. B (Berk Report, p.3.)) He concludes that

23 "similar policy or funding decisions" (i.e. limited to BART and Caltrain) adversely affecting

24 BART and Caltrain would not affect BART and Caltrain minorities as much as AC Transit's

25 minorities. [Webster Decl. at ~4, Exh. B (Berk Report, p.3)] Mr. Berk did not have any way of

26 comparing either quality or quantity of services among Plaintiffs' chosen comparison group.

, 27 SamTrans ridership is 70% minority. GGT's ridership is 38% minority. (Section 28 1l(A)(2).)

6
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(Webster Decl. ~3, Exh. A (Berk Depo. p.58:16-59:15).) In sum, Plaintiffs' statistical expert

2 establishes nothing more than relative minority riderships of AC Transit, BART and Caltrain.

3 (Declaration of Stefan Boedeker ("Boedeker Decl.") at ~5, Exh. B (Boedeker Rebuttal, p.4)

4 D. 5

MTC's Statistical Evidence By contrast, MTC's statistical expert, Stefan Boedeker, has demonstrated numerous

6 statistical deficiencies in Plaintiffs' case, namely that they have provided no statistical evidence

7 of any disparate impact on minority riders. (Boedeker Dec!. at ~5, Exh B (Boedeker Rebuttal p. 4-

8 6,9,12,26).) Namely, MTC has established the following facts: (I) There are more minorities

9 on BART alone than AC Transit (Boedeker Dec!. at ~4, Exh. A (Boedeker Report, p. II);) (2)

10 Across the three operators chosen by Plaintiffs, AC Transit's share of minority riders is

II approximately 39% while BART's is 55% (Boedeker Dec!. at ~4, Exh. A (Boedeker Report, p. 12 13) and ~5, Exh. B (Boedeker Rebuttal, p.8); and finally, (3) There is no statistical correlation

13 between race of ridership and MTC's discretionary funding (Boedeker Decl. at ~4, Exh. A

14 (Boedeker Report, p. 20) and ~5, Exh. B (Boedeker Rebuttal, p.8).) Moreover, Plaintiffs'

15 statistical expert does not challenge any ofMTC's statistical analyses, simply stating that Mr.
16 Boedeker's reports are "not responsive to the questions that I was asked." (Webster Decl. at 'iP,

17 Exh. A (Berk Depo. p. 68: 15-69: 16).) Thus MTC's affirmative analysis of "all other operators"

18 and the subsequent finding that there is no statistical correlation between race of ridership and

19 MTC's discretionary funding is described by Plaintiffs' statistical expert as a "diversion."

20 (Webster Dec!. at ~4, Exh. B (Berk Report, p.2 and 4).)

21 E.
22 23

Individual Plaintiffs' Are Both AC Transit and BART Riders 1. Plaintiff Darensburg Plaintiff Darensburg lives in Oakland and has three children in their late teens or early

24 twenties. (Veit Dec!. at ~I 0, Exh. H (Darensburg depo 15:4-5, 25: 1-6).) Darensburg's son and

25 one of her daughters each has a car. After losing access to a car in 2001, she relies on her

..'

26 children, co-workers, and public transit. (ld. at 37:6-14; 84: 14-85:7; 92-93, 217:4-23.) Before

27 living in Oakland, Darensburg lived in within 5 to 7 blocks from and used Hayward BART. (fd

28 at 100:2-10; 102: 18-103:3; 105:7-16.) Since then, Darensburg has lived in Oakland, either on

7
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MacArthur Boulevard or on 96th Avenue. Darensburg also enjoys access to the BART trains.

2 She estimates that she takes BART 5 to 7 times per week in connection with riding AC Transit. 3 (Veit Dec!. at ~II. Exh. I (Response to Spec. Rogs No.7, p.15.)

4

2. Plaintiff Hain

5

Plaintiff Hain lives in Berkeley, some 4 blocks from the North Berkeley BART station.

6 (Veit Decl. at ~9, Exh. G (Hain depo, 5:22-24; 112:11-13).) From February 2002 through July

7 2006, Hain lived in east Oakland (Jd. at 14:24-15:4), and before that she lived on San Pablo near

8 20th Street. (Jd. at 13:13-16.) Currently, Plaintiff Hain walks from her home to her local BART

9 station and takes BART to attend a weekly class in San Francisco. (Veit Dec!. at'19, Exh. G (Hain

10 depo. III :22-112: 13).) Her daughter also rides BARTIo get to Oakland's School for the Arts. II (Veit Dec!. at ~9, Exh. G (Hain depo, 113:1-5).) She and owns a 1986 BMW 325e, which she

12 acquired in 2006. (Jd. at 64:19-25, 65:19-22.) Since 2001, Hain has owned a car for most of the

13 time. (Id. at 78:24-79:5, 74:8-15, 72: 15-22, 70: 13-71: 12; 79: I0-80: I.) When her car is in the 14 shop, Hain uses AC Transit. (Jd. at pp. 64-79.) Since approximately 2002, Hain has had an

15 unlimited AC Transit bus pass, free bus tickets, or a gas allowance of up to $70 per month. (Id. at

16 47:1-51:10; 69:14-70:9.)

17 F. 18

The Federal Transportation Administration (FTA) Complaint-Driven Title VI Investigation

19

In 2000, FTA informed MTC that it had received complaints alleging that MTC's finding

20 decisions favored BART and Caltrain over AC Transit. (McMillan Dec!. at 'iP5). Following its

21 investigation, on August 19,2002, FTA released its findings:

22

[T]here is also insufficient evidence to corroborate the concern that

23

the reported [funding] disparities have inevitably lead to

24

inequitable or disproportionate funding allocations .... A

preponderance of evidence reviewed does not suggest that the

25

MTC's actions were racially motivated or in violation of Title VI

ofthe Civil Rights Act of I 964.-[FTA has1determined that [FTA1

26

findings do not establish a violation of Title VI with respect to the

issues raised iii [these] complaint[s]. 27

28 (McMillan Dec!. at 1137).

8
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i

I
I

I

2 G. Accusations and AC Transit's GM Response

3

On February 1, 2005, MTC received a letter from Public Advocates, Inc., Communities

4 for a Better Environment (CBE) and Amalgamated Transit Union (ATU) 192, alleging that MTC
5 has historically engaged, and continues to engage" in policies and practices "that benefit the
6
disproportionately white riders of BART and Caltrain [] at the expense of disproportionately 7

8 minority riders of AC Transit." (McMillan Decl. at ~38) In response, AC Transit's General

9 Manager Rick Fernandez sent a letter to MTC's Executive Director; apologizing for the Public

10 . Advocates, CBE and ATU 192' authors' "ill-informed understanding of [transit] funding
II practices in the region." Mr. Fernandez wrote that had he been given an opportunity to discuss
12 this with the Public Advocates, CBE and ATU 192 signatories, he "would have painted out the
13 considerable effort MTC has put forth to assist the AC Transit District with revenue shortfalls."
14 (McMillan Decl at ~40; Veit Decl. at ~3. Exh.A (RFA No. 95).) Continuing, AC Transit's
15
16 General Manager thanked MTC"for its actions "to support AC Transit financially throughout the

17 current economic crisis" not the least of which was MTC's preventive maintenance policy that

18 afforded AC Transit "tens of millions in direct operating funds to keep our [bus] service on the
19 street." (McMillan Decl at ~40;Veit Decl. at ~3. Exh. A (RFA No. 96).) This remains the 20
sentiment of AC Transit's General Manager to this day. (Skowbo Decl. at ~8). 21

22

III. PROCEDURAL BACKGROUND

23

On April 19,2005, Plaintiffs, ATU 192, CBE and three individual plainti~fs brought suit

24 against MTC challenging that MTCs' transit funding decisions were inequitable to AC Transit

25 compared to BART and Caltrain. (Case Doc. No. 1·2 (Complaint, filed 4119/2005).) Specifically,

26 under their operative (second amended) complaint (SAC), Plaintiffs: bring three causes of action

27 (I) 42 USC 2000d ef seq. ("Title VI"); (2) The Equal Protection clause of the Fourteenth

28 Amendment / 42 USC § 1983; and (3) California Government Code ("GC") § 11135. (Case Doc.

9
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1 No. 137 (SAC, filed 11/01/2007).) Per the SAC, MTC "discriminates against [plaintiffs] by

2 denying [them] equal treatment in its funding, planning advocacy, and other decision-making

3 policies and practices, most notably through the alleged "policy and practice of [MTC] funding

4 capital shortfalls but not operating shortfalls" on the bases of Plaintiffs' "race. (Case Doc. No. 137

5 (SAC, para 6, 12,13, 17, 19).) Plaintiffs allege that "[a] majority of the riders of AC Transit,

6 Caltrain and ~ART, taken together, are people of color. However, the passengers...af AC

7 Transit are disproportionately people of color, while the passengers of... Caltrain and BART are

8 disproportionately white." (Case Doc. No. 137 (SAC, para 32).) These alleged "funding

9 disparities" result in "repeated [Ae Transit] bus service cuts[,] fare increases[,]" and a "lower

10 quality of service." (Case Doc. No. 137 (SAC, para 12, 13).)

11

Plaintiffs ask this Court to permanently enjoin MTC "from making any funding decision

12 that causes (a) AC Transit to experience an unfunded transit operating shortfall whilc not causing

13 operating shortfalls that affect BART or Caltrain, or while funding capital shortfalls that

14 disproportionately benefit BART or Caltrain. (Case Doc. No. 137 (SAC, Prayer, para 5).)

15

The parties stipulated to a class of Black, Hispanic, Asian or Pacific Islander and

16 American Indians or Alaskan natives, limited to patrons of AC Transit. Case Doc. No. 145

17 ([Class] Stipulation and Order, filed 12110/2007).)

18

IV. MOTION FOR SUMMARY JUDGMENT LEGAL STANDARD

19

Summary judgment is proper "if the pleadings, depositions, answers to interrogatories,

20 and admissions on file, together with the affidavits,. if any, show that there is no genuine issue as

21 to any material fact and that the moving party is entitled to ajudgment as a maller oflaw."

22 Fed.R.Civ. P. 56(c) The moving party bears the initial burden of demonstrating the absence of a

23 genuine issue of material fact. Celotex Corp. v. Catretl, 477 U.S. 317 (1986). However, the

24 moving party has no burden to negate or disprove matters on which the non-moving party will

25 have the burden of proof at trial. The moving party need only point out to the court that there is an

26 absence of evidence to support the non-moving party's case. ld at 325

27

V. ARGUMENT

28

Plaintiffs' federally-based claims, Title VI and Equal Protection, require proof of

10
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1 intentional discrimination. (Case Doc. No. 137 (SAC).) Similarly, whether regulations

2 promulgated under Government Code §11135, California's sister statute to Title VI, support a

3 private right of action is doubtful given the Supreme Court's interpretation of Title VI.

4 A.
5

Federal Claims There is no private right of action to enforce disparate-impact regulations promulgated

6 under Title VI. Alexander v. Sandoval. 532 U.S. 275 (2001). In order (0 prevail on a Title VI

7 claim, a plaintiff must prove: (1) that he is an '''intended beneficiary' of the federally funded

8 program" the defendants participated in4; and (2) that the defendant intentionally discriminated

9 against him. See e.g. The Epileptic Foundation v. City & Co. ofMaui, 300 F.Supp.2d 1003, 1011

10 (D. Haw. 2003). The second element requires that plaintiffs establish not only that they were

11 treated differently. but that defendant acted with improper discriminatory intent. Id. at 1013.

12

Similarly, proof of racially discriminatory intent or purpose is required to show a violation

13 of the Equal Protection Clause. See Hispanic Taco Vendors afWashington el al. v. City ofPasco,

14 994 F.2d 676, 679 (9th Cir. 1993). As with Title VI claims, to state an equal protection claim

15 under section 1983, a plaintiff must show that the defendant acted with an intent or purpose to

16 discriminate based on membership in a protected class. Commi((ee Concerning Community

17 Improvement et 01., v. City ofModesto. et 01., 2007 U.S. Dis!. LEXIS 50258 at 16'.

18

1. Plaintiffs Cannot Show Any Intentional Discrimination And Thus Their

Federally-based Claims Fail as Matter of Law 19

In order to state a prima facie case, Plaintiffs must show MTC acted with an intent or

20

purpose to discriminate against the them based on their membership in a protected class.

21

Alexander v. Sandoval, 532 U.S. 275 (2001); Committee Concerning Community Improvement,

22

2007 U.S. Dis!. LEXIS 50258 at 1. Under both Title VI and the Equal Protection clause, official

23

action is not unconstitutional solely because it results in racially disproportionate impact. Id. at

24

10; Committee Concerning Community Improvement el al., v. City ofModesto, et al., 2007 U.S.

25

4 For purposes of this motion only, MTC does not contest that individual plaintiffs are "intended 26 beneficiaries" for Title VI purposes. ATU 192 and CBE entities are not "intended beneficiaries"
under Title VI. (Declaration of Adam Hoffman at ~ 16, Exh N, ~ 21, Exh. S) 27 5 Accordingly, under 1983, "[A] plaintiff must plead and prove: (1) a municipal custom or policy
and (2) that this custom or policy was 'the cause of and moving force behind the depravation of 28 constitutional rights.'" Id. at 18-19 (quoting Oklahoma City v. Tuttle. 471 U.S. 808, 819 (1985)

11
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1 Dist. LEXIS 39099 at 17. Where no competent evidence exists directly demonstrating a

2 "discriminatory purpose and intent" through any governmental policy or program, the 'Court may

3 turn to the "totality of the relevant evidence to determine whether invidious discrimination was a
4 motivating factor for the decision." Village 0/Arlington Heights v. Metropolitan Housing Dev.

5 Corp., 429 U.S. §252 §266, 429 U.S. at 266 (1977). Accordingly, the court first looks to: (1) thc

6 discriminatory effect of the official action; and then to (2) the historical background of the

7 decision; (3) the specific sequence of events leading up to the challenged decision; (4) departure

8 [rom the normal procedural sequence; (5) departures from the normal [substantive standards]; and

9 (6) the legislative or administrative history of the decision. Id.

10

Plaintiffs here have not alleged nor can they produce direct evidence a discriminatory

11 purpose and intent underlying any MTC policy or practice, pointing to no evidence suggesting

12 that any MTC official act was motivated by racial animus. City o/Cuyahoga Falls v. Buckeye

13 Comm. Hope Foundation, 538 U.S. 188, 195 (2003). Moreover, Plaintiffs do not and can not

14 present evidence such that Arlington Heights factors would apply to this case. See e.g. Commillee

15 Concerning Community Improvement, 2007 U.S. Ois!. LEXIS 61195 at 14

16

Here, it is undisputed that MTC is the Bay Area's MPO, which coordinates regional

17 transportation planning and that its sphere of influ~nce is the Bay Area. ((Il)(A)(2». There are

18 twenty six transit operators in the Bay Area (II(A)(2»; That Plaintiffs lawsuit excludes twenty

19 three of the twenty six operators from comparison. «II)(C) and (0), (III)); That Plaintiffs' lawsuit

20 seeks to compare only AC Transit vs. BART and Caltrain (ld), and; That AC Transit carries only

21 39% of minorities even among, and when only comparing, AC Transit, BART and Caltrain.

22 (II)(O).

23

As demonstrated more fully below, and with so limited a comparison, Plaintiffs can not

24 show and do not even allege that an official action by MTC "bears more heavily on one race than

25 another." Arlington Heights, 429 U.S. at 266. Thus, there is no "important starting point" for thc

26 Court to even look for circumstantial proof of invidious discrimination. Id

27

Nevertheless, even if Plaintiff could somehow present a racially discriminatory effect,

28 they offer only spurious, if any, evidence of: (I) the "historical background" of any MTC

12
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1 "decision;" (2) the "specific sequence of events" leading up to any "challenged decision;" (3)

2 departures from the normal procedural sequence; (5) departures from the "normal substantive

3 .standards;" or (6) the legislative or administrative history of any "decision." Arlington Heights,

4 429 U.S. at 266. The specific transportation planning reflected in the RTPs is predicated on

5 specific funding allocations, yet Plaintiffs proffered transportation expert, Rubin, evaluated the

6 alleged inadequacies ofMTC's funding policies, but his opinions are based on insufficient facts.

7 Despite the myriad of funding sources and complexities, Rubin did not know what funding AC

8 Transit had asked MTC for or what AC Transit was statutorily eligible to receive. His extensive

9 failure to discuss the "historical background," the "specific sequence of events" or any

10 "departures form normal substantive standards" regarding funding decisions leading up the RTPs

11 precludes an Analysis under Arlington Heights. (See Defendant's Motion to Exclude Expert

12 Testimony, and Objections To Evidence both filed and served herewith)

13

Because Plaintiffs cannot demonstrate MTC acted with an intent or purpose to

14 discriminate against them based on their membership in a protected class, and because their

15 claims set forth only the most narrow of comparisons among Bay Area transit operators, they fail

16 to state a prima facie case under both Title VI and the Equal Protection clause. Accordingly,

17 MTC is entitled to partial summary judgment for Plaintiffs' First and Second causes of action.

18 See Commillee Concerning Community Improvement, 2007 U.S. Dist. LEXIS 61195 at 18.

19 B. 20

California Government Code § 11135 The issues raised under Gov't Code §11135: (1) whether Plaintiffs are foreclosed from

21 pursuing a disparate impact claim under Gov't Code §11135 regulations; and (2) whether a

22 purported violation ofGov't Code §11135 requires a nexus between a state-funded program or

23 activity and the alleged discrimination, are addressed in MTC's Opposition to Plaintiffs'MSA, a

24 motion based entirely on Gov'l Code §11135. However, the Court need not decide these state

25 law issues, because all of plaintiffs claims suffer the same logical and logistical shortfalls that

26 renders insufficient each of Plaintiffs' claims whether under 'intentional discrimination' or the

27 lesser 'discriminatory impact' standard, which they allege applies to their §GC 11135 claim. See

28 Committee Concerning Community Improvement, 2007 U.S. Dist. LEXIS 61195. In addition, the

13
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1 'discriminatory impact' analysis (below) sets out more fully the reasons Plaintiffs can not show

2 and do not even allege that an official action by MTC "bears more heavily on one race than

3 another." Arlington Heights, 429 U.S. at 266.

4 C.
5

Disparate Impact In general, discriminatory impact cases have three distinct stages and the burden of

6 persuasion always remains with plaintiffs. Wards Cove Packing Co v. Atonio, 490 U.S. 642

7 (1989); see also Committee for a Belter North Philadelphia v. Southeastern Pennsylvania Transp.

8 Authority, 1990 U.S. Dist. LEXIS 10895 (ED Pa.) (aJf'd, Committee for Better North

9 Philadelphia v. Southeastern Pennsylvania Transp. Authority, 935 F.2d 1280 (3d Cir. 1991).

10 First, Plaintiff must: (l) prove the existence of and adverse effects of a policy or practice (2) on a

11 protected class such that the population in general is not affected by the policy to the same degree

12 and, (3) must prove that the adverse effects are significant. Second, should plaintiff satisfy the

13 first requirement, and thus his prima facie case, defendant must show that its conduct was based

14 upon legitimate, non-discriminatory reasons. Having accomplished this, the burden is on plaintiff

15 to demonstrate that a feasible, yet less onerous alternative exists." Wards Cove Packing Co. v.

16 Atonio, 490 U.S. 642 (1989); New York Urban League v. Pataki, 71 F.3d 1031 (2" Cir.1995)

17 (applying U.S. Dept. of Transportation regulations promulgated under Title VI in the public

18 . transportation context)(citing Lany P. v. Riles, 793 F.2d 969 (9'" Cir. (1984)'.)

19

1. Plaintiffs Have Not Demonstrated an Actual Policy or Practice on Which This

Suit Can be Based 20

First, Plaintiffs' identification ofa policy or practice is deficient. Plaintiffs SAC contains

21

the overarching allegation that MTC's policy or practice is to "cover" or "fund" projected transit

22

capital [rehabilitation] shortfalls but not to "cover" projected transit operating shortfalls" in the

23

RTPs. (Ill). Thus, the allegation that MTC "cover[s]" or "fund[s]" transit capital rehabilitation

24

6 The Larry P. Court found that under Title VI regulations specifically "in the educational
25 situation, the defendant must 0 show that any given requirement has a manifest relationship to the

education in question (i.e. an "educational necessity"), thus limiting a defendant's requirement of 26 demonstrating the "necessity" of a program or policy to limited instances that are not presented in

this matter. Compare e.g., Coalition a/Concerned Citizens Against /-670 v Damian, 608 F.Supp. 27 110, 127 (SD Ohio, 1984) requiring under Title VI that defendant need only "present a

justification" or "articulate a legitimate nondiscriminatory reason" for the location of a Interstate

28 670.

.

14
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shortfalls in the RTP is demonstrably false, even among the limited comparison group--

2 According to Plaintiffs, "[a]ll three operators [AC transit, BART and Caltrain] had capital

3 rehabilitation shortfalls in the three most recent RTPs" with "BART and Caltrain's capital

4 rehabilitation shortfalls [being] substantial." (Ptfs' Case Doc. No. 175 MSA) p.12:21-23.) But

5 Plaintiffs fail to show what policy MTC has that demonstrates MTC "covers" or "funds" capital

6 rehabilitation shortfalls. Next, even among Plaintiffs comparison group, projected operational

7 shortfalls are not limited.to AC Transit--The 2005 RTP "reflects an operating shortfall for

8 Caltrain." «PlrS' Case Doc. No. 175 MSA,) p12: 15). Moreover, Plaintiffs do not even question

9 whether adequate available funding exists for MTC to "cover" all operating and capital shortfalls.

10

2. The Definite and Significant Adverse Impact Must be Demonstrated on a

Protected Class II

More importantly, the intent of a disparate impact analysis is to determine whether "the

12

impact of the official action...'bears more heavily on one race than another.'" Arlington Heights,

13

429 U.S. at 266 (under an intentional discrimination analysis, this provides only "an important

14

starting point.") Thus, for example in the employment context, a plaintiff establishes a prima

15

facie case of disparate impact by showing a significant disparate impact on a protected class

16

caused by a specific, identified, employment practice or selection criteria. Stout v. Potter 276 FJd

17

IllS, 1121 (9th Cir. 2002)(emphasis added); see also Rose v. Wells Fargo & Co., 902 F.2d 1417,

IS

1424 (9th Cir. 1990)(statistical evidence must demonstrate that the practice in question has

19

caused the plaintiffs' alleged harm "because of their membership in a protected group").

20

It is not sufficient to present evidence raising an inference of discrimination on a disparate

21

impact claim. The plaintiff "must actually prove the discriminatory impact at issue. 1/ Siout, 276

22

FJd at 1121-22. A prima facie case of disparate impact is "usually accomplished by statistical

23

evidence showing 'that an employment practice selects members of a protected class in a

24

proportion smaller than their percentage in the pool of actual applicants.'" ld. For example,

,0

25

"[m]ere references to imbalances of minorities within a work force or to higher concentrations of

26

minorities into lower job levels do not in themselves, however, establish a prima facie case of

27

racial discrimination. The evidence must establish significant disparities in treatment between

28

15
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minorities and nonminorities." Agarwal v. Arthur G. McKee & Co., 19 Fair Emp!. Prac. Cas.

2 (BNA) 503; 16 Empl. Prac. Dec. (CCH) P8301 (ND Cal. 1977).

3

The purpose of anti-discrimination laws are to protect members ofa "protected class."

4 Stout, 276 F.3d at 1121-22. To state a prima facie case, a plaintiff must identify a specific,

5 seemingly neutral practice or policy that has a "significantly adverse impact on persons of a

6 protected class." Garcia v. Spun Steak Co., 998 F.2d 1480, 1486 (1993). In Garcia, the Ninth

7 Circuit held that plaintiffs had failed to make out a prima facie case challenging their employer's

8 English-only policy. The Court noted that "the requirements of a prima facie disparate impact

9 case ... are in some respects more exacting than those of a disparate treatment case. '" Id. That

10 is, in the disparate treatment context/ a plaintiff can make out a prima facie case merely by

11 presenting evidence sufficient to give rise to an inference of discrimination. Id. (citing

12 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-06 (1973).) In a disparate impact case,

13 plaintiffs must do more than merely raise an inference of discrimination before the burden shifts;

14 they "must actually prove the discriminatory impact at issue." /d. (citing Rose, 902 F.2d at 1421).

15

In the typical disparate impact case, in which the plaintiff argues that a selection criterion

16 excludes protected applicants from jobs or promotions, the plaintiff proves discriminatory impact

17 by showing statistical disparities between the number of protected class members in the qualified

18 applicant group and those in the relevant segment of the workforce. Id. (citing Wards Cove, 490

19 U.S. at 650) Whether the protected group has been disadvantaged turns on quantifiable data and

20 the plaintiff may not merely assert that the policy has harmed members of the protected group to

21 which he or she belongs. ld. "Instead, the plaintiff must prove the existence of adverse effects of

22 the policy..[on] the protected class, must prove that the adverse effects are significant, and must

23 prove that the [] population in general is not affected by the policy to the same degree." lei.

24 7 In the employment context, proscribed discrimination comes in two forms. In disparate treatment cases, the plaintiff alleges that an employer has treated him or her less favorably than
25 others due to race, color, religion, sex or national origin, and the plaintiff must prove a
discriminatory intent or motive. In disparate impact cases, by contrast, the plaintiff alleges and
26 proves, usually.through statistical disparities, that facially neutral employment practices adopted
without a deliberately discriminatory motive nevertheless have such significant adverse effects on
27 protected groups that they are "in operation ... functionally equivalent to intentional
discrimination." Harris v. Civil Servo Com, 65 Cal. App. 4th 1356, 1365 (Cal. Ct. App.
28 1998)(citing Watson v. Fort Worth Bank & Trust, 487 U.S. 977, 985-987 (1988).)

16
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Thus. in New York City Envir. Justice Alliance v. Giulliani, 214 F.3d 65, 70 (2nd Cir.

2 2000), under a Title VI disparate impact standard, plaintiffs were required in the course of

3 attempting to establish causation to employ facts and statistics that "adequately captured" the

4 impact of the City's plans on similarly situated members of protected and non-protected groups.

5 Id. (citing New York Urban League, 71 F.3d at 1037). The plaintiffs therefore had to show thal

6 specific actions of the defendants would cause a disparate effect on similarly situated people to

7 t~e detriment of a protected group." Id. at 69 (disparate impact requires a causal connection

8 ·between a facially neutral policy and a disproportionate and adverse impact on minorities")

9 (emphasis added).8 Thus, assuming P.laintiffs have chosen a valid measure Ofa policy or practice

10 that can be quantified across a valid comparison group (discussed below), the Court must look to

11 whether it "'bears more heavily on one race than another,'" Arlington Heights, 429 U.S. at 266.

12

a. Plaintiffs Do Not Allege That An MTC Policy or Practice Favors Onc

Race Over Others

13

The core of Plaintiffs' case stems from the alleged that MTC's generalized funding

14 practices reflected in the RTPs hann AC Transit minority riders. (III). Plaintiffs' case depends

15

not only on artificially pitting one transit operator against two of the twenty odd potential others,

16

it purports to only compare the "white riders" of BART and Caltrain against non-white riders of 17

AC Transit while completely ignoring the non-white riders of BART and Caltrain, the white 18

riders of AC Transit, and the entirety of the remainder or the Bay Area's minority transit riders. 19

(1I(C), 1lI, Ptfs Motion, Doc. No. 175)

20

b. Plaintiffs Ignore the Fact That More Minoritics Ride BART and

21

Caltrain Than AC Transit and Impermissibly Dismiss The Supposcd

Impact MTC's Alleged Policies Also Have On Minority BART and

22

Caltrain Riders

23

Even in their chosen comparison group, Plaintiffs fail to allege or demonstrate an adverse

24 impact on a protected class. ~ CrUey v. Delta Air Lines, Inc., 119 F.3d 102 (2nd Cir. 2007),

25 plaintiffs claimed defendant's employment practices had a disparate impact on pilots aged 55 and

26 8 "In order to make out a prima facie case of disparate impact, plaintiffs must show "a significantly discriminatory impact." Connecticut v. Teal, 457 U.S. 440, 446 (I 982)(Titlc Vll
27 case)); see also New York Urban League, 71 F.3d at 1036 (courts in Title VI disparate impact cases look to Tille VII cases for guidance)." New York City Envir. Justice Alliance v. Giulliani,
28 214 F.3d 65, 70-71 (2nd Cir., 2000).

17
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I older (i.e. a subset ofa larger protected group, aged 40 and older). The Court there held,

2 however, that disparate impact must be alleged for the "entire protected group, i.e. workers aged

3 40 and older." Jd. at 105 (<<hiring scheme had no negative impact on the overall [protected]

4 group.") Similarly, the Court in Carter v CB Richard Ellis, Inc., wrote:

5

The varnish of plaintiffs words about the law's prohibition of

6

discrimination against women and those over 40 was used as a

diversionary tactic to conceal the real complaint-Man adverse employment

7

action taken against a very limited subset of the protected group--be"cause

of their status as members of the limited subset [(administrative

8

managers)]. Thus plaintiffattempt[s] to establish disparate impact by the

same false logic as did the plaintiff in Katz [v. The Regents ofthe

9

University a/California, el al. 229 F.3d 831 (9th Cir. 2000)]. But the Kalz

10

court recognized, and so do we, that disparate impact is not proved merely

because all members of a disadvantaged subgroup are also members of a

II

protected group.

12

Carler, 122 Cal.App, 4th 1313, 1326 (2004),

13

The "pool" that plaintiffs have chosen here contains riders of three transit operators, AC

14 Transit BART and Caltrain. (Il(C), III), The undisputed facts are that, among plaintiffs' chosen

15 comparison pool, BART and Caltrain combined carry more minority riders than AC Transit, with 16 BART alone carrying more minority riders than AC Transit. ((II)(D)). Using plaintiffs chosen

17 comparison grouping, the simple fact is that more minority riders benefit from BART and

18 Caltrain services than they do from AC Transit. «Il)(D)).

19

Thus, the shortcomings illuminated by the CrUey and Carter courts are even more

20 apparent here. Plaintiffs are not only asserting that non-white riders of AC Transit are adversely

21 affected because they are riders of AC Transit, they asserting that the non-white riders of BART
22 and Caltrain can not be similarly adversely affected (because they constitute a relatively smaller

23 majority among these artificially chosen operators) by the same policies or practices. (Webster 24 Decl. T. at ~1, Exh. #, Sanchez Report, p.l02). The plaintiffs case here rests not on the race of

25 AC Transit's riders, but the fact that they are AC Transit riders. ((II)(C)). There is no basis in law 26. for Plaintiffs' purported comparison. See e.g. CrUey, 119 F.3d 102. And, it "[r]eflects a basic 27 misunderstanding of the meaning of disparate impact." George Frank, et al. v. Co. ofLos

28 Angeles, el aI., 149 Cal.App. 4th 805, 818 (2007). Still, even if Plaintiffs could demonstrate

18
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inequitable funding among these all predominantly-minority ridership transit operations, "the law

2 does not prohibit discrimination" against transit systems. Carter, 122 Cal.App.4th at 1321.

3

Plaintiffs have intentionally couched this lawsuit, which in essence is about a preference

4 for funding for AC Transit that happens to have predominantly minority riders, in terms of racial

5 discrimination. It is not logically and legally appropriate to exclude BART and Caltrain

6 minorities from a analysis ofwhether an general MTC policy had disparate impacts on minorities.

7 See e.g. Criley. 119 F.3d 102.

8

c. Both Class representatives Enjoy the Supposedly Illegitimate

"Benefits" Conferred Upon BART riders

9

Plaintiffs cannot possibly demonstrate a disparity between minorities and non-minorities

10

even within their artificially chosen universe of transit operators and do not attempt to do so.

11

Furthermore, the class of plaintiffs here could not possibly be harmed. Both Ms. Darensburg and

12

Ms. Hain are BART riders. This comes as no surprise for, as Plaintiffs succinctly summarize, 13

"BART's geographical service are overlaps extensively with that of AC Transit." (Ptfs' Case

14

Doc. No 175, MSA p.4: 16) Specifically, Darensburg enjoys access to the BART trains and takes 15

BART 5 to 7 times per week in connection with riding AC Transit. «ll)(E)(l )). Hain uses BART 16

to attend class in San Francisco on a weekly basis. «1l)(E)(2)). 17

According to Plaintiffs, when MTC allegedly benefits BART riders, it does so at the

18

expense of AC Transit riders. (Ptfs' Case Doc. No. 175 MSA) Thus, under Plaintiffs rubric, both

19

Darensburg and Hain simultaneously enjoy the benefits conferred upon BART riders they would

20

otherwise receive as AC Transit riders. To properly statistically analyze disparate impact, no

21 member of the protected class can be a member of the comparison group. (Il)(D)), Garcia, 998

22

F.2d at 1486.

23

3. A Prima Facie Case Requires a Definite, Significant Adverse Impact Taking

24

Into Account All Relevant Bases of Comparison

25

A prima facie disparate impact case also requires a significantly adverse or

26 disproportionate impact on persons of a particular type produced by the defendant's facially

27 neutral acts or practices." See e.g. Gamble v. City ofEscondido 104 F.3d 300, 306 (9th. Cir.

28 1997). Plaintiffs must establish that the proposed administrative action involves "some definite,

19
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1 measurable disparate impact.II Coalition o/Concerned Citizens against 1-670, 608 F. Supp. at

2 127' (citing NAACP v. Medical Center, Inc., 657 F.2d 1322, 1332 (3rd Cir. 1981)); see also,

3 South Bronx CoalitionJor Clean Air v. Conroy, 20 F.supp.2d 565, 572-3 (SD N.Y. 1998)

4 ("disparate impact under Title VI requires 'a reliable indicator of disparate impact' and 'an

5 appropriate statistical measure' that takes into account all relevant bases of comparison).) The

6 burden is on Plaintiffs to prove that the measurement employed is meaningful. See New York

7 City Envir. Justice Alliance v. Giulliani, 214 F.3d 65, 70 (2nd Cir., 2000).

8

For example, in New York City Envir. Justice Alliance v. Gililliani, 214 FJd 65, (2nd Cir.,

9 2000), plaintiffs alleged that the City'S proposed sale or changed use of lots in predominantly

10 minority communities (from community gardens leased to individuals and community groups

11 under the City's "Green Thumb" program to housing and retail space). Id. at 70. There, under a

12 Title VI disparate impact standard, 10 the Court held that "the plaintiffs were required in the course

13 of attempting to establish causation to employ facts.and statistics that "adequately captured" the

14 impact of the City's plans on similarly situated members of protected and non-protected groups.

15 Id (citing New York Urban League, 71 F.3d at 1037). The plaintiffs therefore had to show,

16 "using an 'appropriate measure,' that specific actions of the defendants would cause a disparate

17 effect on similarly situated people to the detriment of a protected group." !d. at 69. Plaintiffs'

18 declarations, however, "made no such showing" because as with Plaintiffs' transportation

19 experts' reports here, the declarations included a "wide variety of arguments and data" touching

20 on diverse subjects, but did not show sufficient detriment across a protected group. Id. at 70.

21 There, although plaintiffs "unquestionably submitted evidence that community gardens arc

22 disproportionately located in minority neighborhoods and demonstrated that of the gardens "at

23 imminent risk of sale or destruction," over 86% are found in districts whose populations are more

24 than two-thirds minority, the court concluded that plaintiffs had "not demonstrate[d] the

25 appropriateness of their proposed measure, of the disparate impact". ld. at 70-7 L

.'

26
9 (applying Title VI disparate impact regulations promulgated under Title VI in a pre- Alexander 27 v. Sandoval decision.)
10 At the time, the now foreclosed issue of whether a private right of action may be brought to 28 enforce (disparate impact) regulations issued under Title VI "remaine[d] an open one." Id. at 73.

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As demonstrated below, even efthey could demonstrate an adequate base, Plaintiffs fail to

2 demonstrate a definite and significant measure of impact.

3

a. Plaintiffs Do Not Justify Their Limited Comparison Of AC Transit to

BART and Caltrain 4

At the outset, comparing a "bus" system to a "rail" system, at best, is an inherently

5

difficult exercise for transportation planners (and experts), let alone this Court. Addressing a

6

similar "threshold legal issue" in New York Urban League, Inc. v. State a/New York ef al., 71

7

F.3d 1031 (2nd Cir. 1991), the court questioned whether subsidies to the "two different

8

transportation systems" being compared (the "predominantly minority" New York City bus and

9

subway vs. the "overwhelmingly white" commuter rail lines) was even actionable under disparate

10

impact regulations. The court found that it need not address this "threshold" issue because

II

plaintiffs' measure, the "farebox recovery ratio," did "not reveal the extent to which one system

12

might have higher costs associated with its operations." ld. at 1038.

13

Plaintiffs appear to offer no reasonable justification as to why it is appropriate to begin

14

comparing these systems, let alone to the exclusion of others, other than that each operates in a

15

"single mode" and "serve multiple counties." (Ptfs' Case Doc. No. 175, MSA p.6). The

16

justification for purportedly examining these three different, yet overlapping (in the case of

17

BART and AC Transit and BART and Caltrain) operators is unavailing. First, there are other

18

"single mode transit operators and others that serve more than one county, including Samtrans,

19

and GGT. «II)(A)(2)). There are even other single mode bus operators (Samtrans) that Plaintiffs

20

do not include in their comparison. «1I)(A)(2)).

21

Moreover, as detailed above, plaintiffs purported 'statistical analysis' consists of no more

22

than the recitation of the relative percentage of minorities in an artificially chosen group.

23

«II)(D)). The only finding Plaintiffs put forth as "statistically significant" is that the relative

24

percentages of minorities on AC Transit, BART and Caltrain, all of which have predominantly

25

minority riderships, is "real." «JI)(C)). This is of no great import as the relative percentage of

26

minorities is not in dispute, nor is the fact that each of these systems has a predominantly

27

minority riderships-The relative percentage of riders does not speak to the whether minority

28

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riders within the appropriate comparison group suffer adverse impact from a common policy or

2 practice compared to riders in non-protected groups using an appropriate measure.

3

Transit operators excluded from Plaintiffs' rubric demonstrate the lack of depth and merit

4 to Plaintiffs' claims For example, the M~I system ignored by Plaintiffs carries the most

5 minority passengers of the Bay Areas 26 systems and far more than AC Transit. ((II)(A)(2)).

6 Despite MVNI's dominance in total number and minority patrons over any other system, and

7 despite the fact that AC Transit, MUNI and BART are eligible for certain AS 1107 funds, MTC

8 splits these eligible AB 1107 among only AC Transit and Muni, giving 50% to each. (McMillan

9 Decl.~13.) This distribution «policy" totally excludes BART and wildly disfavors MUNI on a per

10 capita (and per minority) basis in favor of AC Transit. (Webster Decl., at ~8, Exh. F (Deposition

II of Randy Rentschler, p.269:14-276:8.).)

12

Moreover, when compared to Golden Gate Transit, which car~ies the highest percentage

13 of white riders, Plaintiffs argument proves to be even more disingenuous. In fact, AC Transit's

14 cuts pale in comparison to GGT cuts over the same period. From 2002 through 2006, GGT cut its

15 service (VRM) by 35% and lost 21 % afhs ridership. «II)(B)(3».

16

b. Even in the Limited Comparison Grouping, Plaintiffs Fail to

Demonstrate a Reliable Indication of Disparate Impact 17

Moreover, even if the Court could be presented with an appropriate comparison group that

18

took into account all relevant bases of comparison, Plaintiffs' evidence lacks a reliable indicator

19

of disparate impact and an appropriate statistical measure. See· New York City Envir. Justice

20

Alliance v. Giulliani, 214 F.3d 65, 71 (2nd Cir., 2000). Thus, while Plaintiffs allege disparities in

21

the quantity, quality, and fares of transit services, none of these provides a appropriate or

22

adequate statistical measure on which a prima facie case can be based in this case and none are

23

demonstrated here. See Id. at 70-71. Plaintiffs statistical expert engaged in no analysis of any of

24

these metrics and there is no evidence, even if taken as true and reliable, that any differences

25

among these operators is statistically significant. ((II)(C) and (D)).

26

(i) Plaintiffs Providc No Evidence or Comparisons of

27

"Highcr Fares"

28

Plaintiffs com. plain that MTC policy or. practice has resulted in higher fares for AC Transit

22
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1 riders as opposed to BART and Caltrain riders. (III). They have failed to engage in any

2 meaningful analysis in that regard. The unexamined and non-established fare structure or

3 changes thereto of any operator obviously cannot serve as "a reliable indicator of disparate

4 impact" and "an appropriate statistical measure." Jd at 71. Moreover, it is unclear that higher

5 fares would impact Plaintiffs class in any event. For example, since 2001, class representative

6 Vivian Hain has the option of receiving free AC Transit (via a "bus pass" under a county welfare

7 program) service or a gas stipend for her car. ((II)(E)(2)). Whether she chooses one or the other,

S obviously, the effects of changes in AC Transit fares, if any, are mitigated by the ability to use

9 AC Transit service for free.

10

(ii) Plaintiffs Provide No Evidence or Comparisons of

Transit "Quality" II
Similarly, Plaintiffs SAC asserts that BART and CaItrain riders enjoy a superior "quality"

12

of service to that of AC Transit. (III). Again, Plaintiffs have presented no competent evidence in

13 this regard, and certainly no statistical evidence.

14

(iii) Plaintiffs Purported Comparisons of "Quantity" are

15

Inadequate

16

The closest Plaintiffs come to presenting a quantifiable metric of disparate impact falls

17 under the category of "service." In this regard, they assert only a comparison of vehiclc revenue

18 miles (VRM) ((Ptfs' Case Doc. 167-2, MSA) (Rubin Report, p.44).) Leaving aside whether

19 VRM, by itself is an appropriate measure of 'equity' between 'rail' and 'bus,' let alone betwccn

20 AC Transit, BART and Caltrain, VRM is but one quantitative measure that can be employed in

21 the transportation field. Webster Dec!. at ~6, Exh. D. (Cervero Depo p234: 1-238: 14) But, even

22 stili, as used by Plaintiffs here VRM only shows only an aggregate measure ofrevenue miles, nOl

23 the effects on AC Transit's minority riders.

24

However, it is undisputed that during the service "cuts" of which Plaintiffs complain, AC

25 Transit "protected the [predominantly minority and most populous] trunks" and cut service "in

26 the [less minority and less populous] hills. ((1I)(B)(3)). Plainliffs completely fail [0 account for

27 the actual effect on AC Transit's minority riders.

28

Thus, the VRM metric, even ifit alone was a valid measure of equity, necessarily fails to

23
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capture the actual effects of service changes on AC Transit's protected classes. That is, we know

2 the VRM generated by Plaintiffs fails to consider the established fact that AC Transit service

3 changes tended to adversely affect sections of AC Transit's service area with lower minority

4 ridership before it affected, ifat all, the yast majority of minority riders that use AC Transit's

5 "protected" trunk routes. ((II)(B)(3».

6

c. There is No Correlation Between Race and MTC's Discretionary

Funding 7

Finally, 'not only do Plaintiffs' claims fail under any civil rights standard, MTC's

8

statistical expert has demonstrated there is no correlation between MTC's allocation of

9

discretionary funds and race using each of the discretionary Funding Reports from 2003~04

10

through 2005-06. ((II)(D». While Plaintiffs' proferred expert, Berk, doubted Boedeker's detailed

11

analysis, he did not challenge Boedeker's conclusion in this regard stating "J have not done that

12

analysis." ((II)(C).

13

D.
14

Plaintiffs specious Claims invites this court to substitute its judgment for that of state and federal governments, MTC, local governments and politicians, Transit

Agencies, and voters IS

It is well-settled that courts are ilI~equipped to address complex social issues like

16

transportation funding and finance, and are, in the vast majority of cases, not the proper forum.

17

See Dandridge v. Williams, 397 U.S. 471, 487 (1970)("the Constitution does not empower this

18

Court to second~guess state officials charged with the difficult responsibility' of allocating limited

19

public welfare funds among the myriad of potential recipients."); San Antonio lndep. Sch. Disl. v.

20

Rodriguez, 411 U.S. 1,42-43 (1973)(education finance policy); Committee Jar a Beller North

21

Philadelphia v. SEPTA (transportation finance policy).

22

In addition to matters of fiscal policy, this case also involves the most persistent and

23

difficult questions of transportation policy, another area in which this Court's lack of specialized

24

knowledge and experience counsels against interference with the informed judgments made at the

25

federal, state, regional and local levels. Like public education finance and public welfare benefits

26

policies, public transportation planning and finance presents a myriad of "intractable economic,

27

social, and even philosophical problems." Dandridge, 397 U.S. at 487. As with education finance

28

24
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1 policy, the very complexity of the problems of planning, financing and managing the Bay Areas'

2 transportation network system suggests that "there will be more than one constitutionally

3 permissible method of solving them," and that, within the limits ofrationaiity, MTC's efforts to

4 tackle these problems should be entitled to respect. San Antonio, 411 U.S. at 48.

5

Sanctioning too Iowa legal standard for inferring discriminatory motivation would

6 encourage harassing, baseless lawsuits, force public agencies to justify their conduct upon only

7 the "slim reed of the highly speculative inference" and would thrust the federal courts directly

8 into the business of prescribing comprehensive, detailed, objective and mandatory guidelines in

9 the dynamic and complex realm of public transportation planning and finance. See e.g. Gay v.

10 Waiters' & Dairy Lunchmen's Union, 694 F.2d 531, 555 (9th Cir. 1982). Furthennorc, the specter

11 of endless lawsuits based on mere disproportional impacts could actually serve to discouragc

12 public entities from taking measures designed to benefit protected groups. See e.g. New York City

13 Envir. Justice Alliance, 214 F.3d at 71. Nevertheless, under any civil rights standard, Plaintiffs

14 have failed to and cannot raise a triable issue of fact regarding alleged racial discrimination.

15

VI. CONCLUSION

16

For the foregoing reasons, MTC's Motion should be granted.

17 DATED: April 22, 2008
18 19 20 21 22 23

HANSON, BRIDGETT, MARCUS, VLAHOS & RUDY, LLP
tf& --- By.KIMANOLIUS
Attorneys for Defendant METROPOLITAN TRANSPORTATION COMMISSION

24

25

26

27

28
25
NOTICE OF MOT. AND MOTION FOR SUMMARY JUDGMENT; Case No. C 05 01597 EDL

1450797.1

 
 Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 1 of 47
ADRMOP, CLOSED, E−Filing, PROTO, PRVADR
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:05−cv−01597−EDL

Darensburg et al v. Metropolitan Transportation Commission Assigned to: Magistrate Judge Elizabeth D. Laporte Demand: $0 Case in other court: 09−15878 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/19/2005 Date Terminated: 03/27/2009 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Sylvia Darensburg

represented by Bill Lann Lee Lewis, Feinberg, Lee, Renaker &Jackson, P.C. 476 9th Street Oakland, CA 94607 510−839−6824 Fax: 510−839−7839 Email: blee@lewisfeinberg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Hutchinson Lieff, Cabraser, Heimann &Bernstein 275 Battery Street 30th Floor San Francisco, CA 94111 415−956−1000 x2312 Fax: 415−956−1008 Email: dhutchinson@lchb.com ATTORNEY TO BE NOTICED

Grant P. Fondo USAO, Northern District of California San Jose 150 Almaden Blvd Suite 900 san jose, CA 95113 408−535−5035 Fax: 408−535−5066 Email: grant.fondo@usdoj.gov TERMINATED: 11/17/2008 ATTORNEY TO BE NOTICED

Guillermo Mayer Public Advocates, Inc. 131 Steuart Street, Suite 300 San Francisco, CA 94105 415−431−7430 Fax: 415−431−1048 Email: gmayer@publicadvocates.org ATTORNEY TO BE NOTICED

Heather Annette Dunn Navarro Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 650−843−5649 Fax: 650−857−0663 Email: navarrohd@cooley.com ATTORNEY TO BE NOTICED

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 2 of 47
Jessica Valenzuela Santamaria Cooley LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 650−843−5000 Fax: 650−849−7400 Email: jsantamaria@cooley.com ATTORNEY TO BE NOTICED
Margaret Elizabeth Hasselman Lewis, Feinberg, Lee, Renaker &Jackson 476 9th Street Oakland, CA 94607 510−839−6824 Email: mhasselman@lewisfeinberg.com ATTORNEY TO BE NOTICED
Matthew J. Brigham Cooley Godward Kronish LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 (650) 843−5000 Fax: (650) 857−0663 Email: mbrigham@cooley.com ATTORNEY TO BE NOTICED
Neha Mukund Marathe Cooley Godward Kronish Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306 650−843−5567 Fax: 650−857−0663 Email: nmarathe@cooley.com ATTORNEY TO BE NOTICED
Nirej S. Sekhon Lieff Cabraser Heimann &Bernstein, LLP Embarcadero Center West 275 Battery Street, Suite San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: nsekhon@lchb.com TERMINATED: 04/08/2006 ATTORNEY TO BE NOTICED
Richard Anthony Marcantonio Public Advocates, Inc. 131 Steuart Street, Suite 300 San Francisco, CA 94105 415−431−7430 Fax: 415−431−1048 Email: rmarcantonio@publicadvocates.org ATTORNEY TO BE NOTICED
Sacha Crittenden Steinberger Lewis, Feinberg, Lee, Renaker &Jackson P.C. 1330 Broadway Suite 1800 Oakland, CA 94612 510−839−6824 Email: ssteinberger@lewisfeinberg.com

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 3 of 47

ATTORNEY TO BE NOTICED

Plaintiff Virginia Martinez

represented by Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Hutchinson (See above for address) ATTORNEY TO BE NOTICED

Grant P. Fondo (See above for address) TERMINATED: 11/17/2008 ATTORNEY TO BE NOTICED

Guillermo Mayer (See above for address) ATTORNEY TO BE NOTICED

Heather Annette Dunn Navarro (See above for address) ATTORNEY TO BE NOTICED

Jessica Valenzuela Santamaria (See above for address) ATTORNEY TO BE NOTICED

Margaret Elizabeth Hasselman (See above for address) ATTORNEY TO BE NOTICED

Matthew J. Brigham (See above for address) ATTORNEY TO BE NOTICED

Neha Mukund Marathe (See above for address) ATTORNEY TO BE NOTICED

Nirej S. Sekhon (See above for address) TERMINATED: 04/08/2006 ATTORNEY TO BE NOTICED

Richard Anthony Marcantonio (See above for address) ATTORNEY TO BE NOTICED

Plaintiff
Vivian Hain individuals on behalf of themselves &all others similarly situated

represented by Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Hutchinson (See above for address) ATTORNEY TO BE NOTICED

Grant P. Fondo (See above for address) TERMINATED: 11/17/2008 ATTORNEY TO BE NOTICED

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 4 of 47

Plaintiff Amalgamated Transit Union, Local 192

Guillermo Mayer (See above for address) ATTORNEY TO BE NOTICED
Heather Annette Dunn Navarro (See above for address) ATTORNEY TO BE NOTICED
Jessica Valenzuela Santamaria (See above for address) ATTORNEY TO BE NOTICED
Margaret Elizabeth Hasselman (See above for address) ATTORNEY TO BE NOTICED
Matthew J. Brigham (See above for address) ATTORNEY TO BE NOTICED
Neha Mukund Marathe (See above for address) ATTORNEY TO BE NOTICED
Nirej S. Sekhon (See above for address) TERMINATED: 04/08/2006 ATTORNEY TO BE NOTICED
Richard Anthony Marcantonio (See above for address) ATTORNEY TO BE NOTICED
Sacha Crittenden Steinberger (See above for address) ATTORNEY TO BE NOTICED
represented by Peter David Nussbaum Altshuler Berzon LLP 177 Post Street Suite 300 San Francisco, CA 94108 415 421−7151 Fax: 415−362−8064 Email: pnussbaum@altshulerberzon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Bill Lann Lee (See above for address) ATTORNEY TO BE NOTICED
Daniel T. Purtell Altshuler Berzon Nussbaum Rubin &Dem 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Fax: 415−362−8064 Email: dpurtell@altshulerberzon.com ATTORNEY TO BE NOTICED
Grant P. Fondo

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 5 of 47

(See above for address) TERMINATED: 11/17/2008 ATTORNEY TO BE NOTICED

Heather Annette Dunn Navarro (See above for address) ATTORNEY TO BE NOTICED

Jessica Valenzuela Santamaria (See above for address) ATTORNEY TO BE NOTICED

Laura P. Juran Altshuler Berzon LLP 177 Post Street, Suite 300 San Francisco, CA 94108 415−421−7151 Email: ljuran@altshulerberzon.com ATTORNEY TO BE NOTICED

Linda Lye ACLU of Northern California 39 Drumm Street San Francisco, CA 94111 415 621 2493 Fax: 415 255 1478 Email: llye@aclunc.org ATTORNEY TO BE NOTICED

Margaret Elizabeth Hasselman (See above for address) ATTORNEY TO BE NOTICED

Matthew J. Brigham (See above for address) ATTORNEY TO BE NOTICED

Neha Mukund Marathe (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Communities for a Better Environment

represented by Bill Lann Lee (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adrienne L. Bloch Communities for a Better Environment 1904 Franklin Street Suite 600 Oakland, CA 94612 510−302−0430 Fax: 510−302−0438 Email: abloch@cbecal.org ATTORNEY TO BE NOTICED

Daniel Hutchinson (See above for address) ATTORNEY TO BE NOTICED

Grant P. Fondo (See above for address) TERMINATED: 11/17/2008

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 6 of 47
ATTORNEY TO BE NOTICED
Heather Annette Dunn Navarro (See above for address) ATTORNEY TO BE NOTICED
Jessica Valenzuela Santamaria (See above for address) ATTORNEY TO BE NOTICED
Margaret Elizabeth Hasselman (See above for address) ATTORNEY TO BE NOTICED
Matthew J. Brigham (See above for address) ATTORNEY TO BE NOTICED
Neha Mukund Marathe (See above for address) ATTORNEY TO BE NOTICED
Nirej S. Sekhon (See above for address) TERMINATED: 04/08/2006 ATTORNEY TO BE NOTICED
Sacha Crittenden Steinberger (See above for address) ATTORNEY TO BE NOTICED
William B Rostov Communities for a Better Environment 1440 Broadway Suite 701 Oakland, CA 94601 510/302−0430 Fax: 510/302−0438 Email: abloch@cbecal.org ATTORNEY TO BE NOTICED

V.
Defendant
Metropolitan Transportation Commission

represented by Kimon Manolius Hanson Bridgett LLP 425 Market Street, 26th Floor San Francisco, CA 94105 (415) 777−3200 Fax: (415) 541−9366 Email: kmanolius@hansonbridgett.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Adam Wolff Hofmann 425 Market St. 26th Floor San Francisco, CA 94105 415−995−5819 Email: ahofmann@hansonbridgett.com ATTORNEY TO BE NOTICED
Cynthia E. Segal Metropolitan Transportation Commission Joseph P. Bort Metrocenter

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 7 of 47

101 8th Street Oakland, CA 94607−4700 510/817−5700 Fax: 510/817−5848 ATTORNEY TO BE NOTICED

Francis F. Chin Metropolitan Transportation Commission Joseph P. Bort Metrocenter 101 8th Street Oakland, CA 94607−4700 510/817−5700 Fax: 510/817−5848 ATTORNEY TO BE NOTICED

Julia Heller Veit Hanson Bridgett LLP 425 Market Street, 26th Floor San Franciscos, CA 94105 (415) 777−3200 Fax: (415) 541−9366 Email: jveit@hansonbridgett.com ATTORNEY TO BE NOTICED

Karin Manwaring Arnold , Hanson Bridgett Marcus Vlahos &Rudy, LLP 425 Market Street, 26th Floor San Francisco, CA 94105 415−777−3200 x5866 Fax: 415−541−9366 Email: karnold@hansonbridgett.com ATTORNEY TO BE NOTICED

Neha Mukund Marathe (See above for address) ATTORNEY TO BE NOTICED

Warren Richmond Webster Hanson Bridgett LLP 425 Market Street, 26th Floor San Francisco, CA 94105 (415) 777−3200 Fax: (415) 541−9366 Email: wwebster@hansonbridgett.com ATTORNEY TO BE NOTICED

Amicus
American Civil Liberties Union Foundation of Northern California

represented by Julia Harumi Mass , Esq. American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/19/2005

# Docket Text
1 CLASS ACTION COMPLAINT For Injunctive &Declaratory Relief − [Summons Issued] against Metropolitan Transportation Commission, [Filing Fee: $250.00,

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 8 of 47

04/19/2005 04/19/2005 04/19/2005 05/03/2005 05/05/2005 06/10/2005
06/10/2005 06/10/2005 06/10/2005
06/10/2005
06/10/2005
06/10/2005

Receipt Number 3371505]. Filed by Plaintiffs Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg &Virginia Martinez. (tn, COURT STAFF) (Filed on 4/19/2005) Additional attachment(s) added on 4/20/2005 (tn, COURT STAFF). Additional attachment(s) added on 4/20/2005 (tn, COURT STAFF). (Entered: 04/20/2005)
SUMMONS Issued as to Metropolitan Transportation Commission. (tn, COURT STAFF) (Entered: 04/20/2005)
2 ADR SCHEDULING ORDER: Case Management Statement due 8/16/2005 &Initial Case Management Conference set for 8/23/2005 10:00 AM. (Attachments: # 1 Standing Order).(tn, COURT STAFF) (Filed on 4/19/2005) (Entered: 04/20/2005)
CASE DESIGNATED for Electronic Filing. (tn, COURT STAFF) (Entered: 04/20/2005)
3 CLERK'S NOTICE: Cases C−01−750−TEH and C−05−1597−EDL are not related (tdm, COURT STAFF) (Filed on 5/3/2005) (Entered: 05/03/2005)
4 CERTIFICATE OF SERVICE by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez of Summons and Complaint (Sekhon, Nirej) (Filed on 5/5/2005) (Entered: 05/05/2005)
5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof filed by Metropolitan Transportation Commission. Motion Hearing set for 8/2/2005 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Manolius, Kimon) (Filed on 6/10/2005) (Entered: 06/10/2005)
6 Request for Judicial Notice re 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof filed byMetropolitan Transportation Commission. (Related document(s) 5 ) (Manolius, Kimon) (Filed on 6/10/2005) (Entered: 06/10/2005)
7 CONSENT to Proceed Before a US Magistrate Judge by Metropolitan Transportation Commission.. (Manolius, Kimon) (Filed on 6/10/2005) (Entered: 06/10/2005)
8 Declaration of Kimon Manolius in Support of 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof, 6 Request for Judicial Notice, filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A)(Related document(s) 5 , 6 ) (Manolius, Kimon) (Filed on 6/10/2005) (Entered: 06/10/2005)
9 Declaration of Therese McMillan in Support of 8 Declaration in Support,, 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof, 6 Request for Judicial Notice, filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A−O (Manual Filing Notification))(Related document(s) 8 , 5 , 6 ) (Manolius, Kimon) (Filed on 6/10/2005) (Entered: 06/10/2005)
10 Declaration of Kenneth A. Duron in Support of 8 Declaration in Support,, 9 Declaration in Support,, 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof, 6 Request for Judicial Notice, filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A (Part 1)# 2 Exhibit A (Part 2))(Related document(s) 8 , 9 , 5 , 6 ) (Manolius, Kimon) (Filed on 6/10/2005) (Entered: 06/10/2005)
11 Declaration of Deborah F. McClain in Support of 8 Declaration in Support,, 9 Declaration in Support,, 10 Declaration in Support,, 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof, 6 Request for Judicial Notice, filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A (Part 1)# 2 Exhibit A (Part 2))(Related document(s) 8 , 9 , 10 , 5 , 6 ) (Manolius, Kimon) (Filed on 6/10/2005) (Entered: 06/10/2005)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 9 of 47

06/10/2005 06/13/2005 06/17/2005 06/28/2005 06/29/2005 06/30/2005 07/25/2005 07/25/2005
07/25/2005
07/29/2005 08/02/2005 08/02/2005 08/02/2005 08/04/2005 08/09/2005

12 CERTIFICATE OF SERVICE by Metropolitan Transportation Commission re 9 Declaration in Support, Manual Filing Notification Regarding: Exhibits A−O to the Declaration of Therese McMillan (Manolius, Kimon) (Filed on 6/10/2005) (Entered: 06/10/2005)
13 NOTICE of Manual Filing of EXHIBITS A−O to the Declaration of Therese McMillan re 9 Filed by Defendant Metropolitan Transportation Commission. (tn, COURT STAFF) (Filed on 6/13/2005) (Entered: 06/16/2005)
14 CONSENT to Proceed Before a US Magistrate Judge by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez.. (Sekhon, Nirej) (Filed on 6/17/2005) (Entered: 06/17/2005)
15 Proposed Order re 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 6/28/2005) (Entered: 06/28/2005)
16 STIPULATION and Proposed Order to Continue Hearing Date by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Sekhon, Nirej) (Filed on 6/29/2005) (Entered: 06/29/2005)
17 STIPULATION AND ORDER CONTINUING HEARING ON MOTION TO DISMISS. Signed by Magistrate Judge Elizabeth D. Laporte on June 30, 2005. (edllc2, COURT STAFF) (Filed on 6/30/2005) (Entered: 06/30/2005)
18 OBJECTIONS to re 6 Request for Judicial Notice, by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Sekhon, Nirej) (Filed on 7/25/2005) (Entered: 07/25/2005)
19 Memorandum in Opposition re 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof −− Plaintiffs' Opposition to Defendant Metropolitan Transportation Commission's Motion to Dismiss filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Lye, Linda) (Filed on 7/25/2005) (Entered: 07/25/2005)
20 Proposed Order re 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof −− [Proposed] Order Denying Defendant Metropolitan Transportation Commission's Motion to Dismiss by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Lye, Linda) (Filed on 7/25/2005) (Entered: 07/25/2005)
21 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options for Plaintiff Amalgamated Transit Union Local 192 (Lye, Linda) (Filed on 7/29/2005) (Entered: 07/29/2005)
22 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options for Individual Plaintiffs (Sekhon, Nirej) (Filed on 8/2/2005) (Entered: 08/02/2005)
23 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options for Plaintiff Communities for a Better Environment (Sekhon, Nirej) (Filed on 8/2/2005) (Entered: 08/02/2005)
24 NOTICE of need for ADR Phone Conference (ADR L.R. 3−5 d) (Sekhon, Nirej) (Filed on 8/2/2005) (Entered: 08/02/2005)
25 ADR Certification (ADR L.R. 3−5b) of discussion of ADR options by Parties and Counsel (Manolius, Kimon) (Filed on 8/4/2005) (Entered: 08/04/2005)
26 REPLY MEMORANDUM in Support of re 5 MOTION to Dismiss for Failure to State a Claim upon which Relief can be Granted; Memorandum of Points and Authorities in Support Thereof Filed by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 8/9/2005) Modified on 8/16/2005 (tn, COURT STAFF).

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 10 of 47

08/09/2005 08/12/2005 08/16/2005 08/23/2005 08/24/2005 08/24/2005 09/19/2005 10/11/2005
10/28/2005 10/28/2005 10/28/2005 10/31/2005 10/31/2005

(Entered: 08/09/2005)
27 RESPONSE to Plaintiffs' Objections to Evidence Filed by Metropolitan Transportation Commission. (Related document(s) 5 ) (Veit, Julia) (Filed on 8/9/2005) Modified on 8/16/2005 (tn, COURT STAFF). (Entered: 08/09/2005)
28 CONSENT to Proceed Before a US Magistrate Judge by Amalgamated Transit Union, Local 192.. (Nussbaum, Peter) (Filed on 8/12/2005) (Entered: 08/12/2005)
29 JOINT CASE MANAGEMENT STATEMENT filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Sekhon, Nirej) (Filed on 8/16/2005) (Entered: 08/16/2005)
30 Minute Entry: Hearing held on 8/23/2005 before Elizabeth D. Laporte on Defendant's Motion to Dismiss 5 . Court to issue order. (Court Reporter Peppina Thompson) (lh, COURT STAFF) (Date Filed: 8/23/2005) (Entered: 08/24/2005)
31 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7−3.d Letter attaching decision filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Enclosure)(Lye, Linda) (Filed on 8/24/2005) (Entered: 08/24/2005)
32 NOTICE by Metropolitan Transportation Commission Notice of Change of Main Telephone and Facsimile Numbers (Webster, Warren) (Filed on 8/24/2005) (Entered: 08/24/2005)
33 ORDER GRANTING WITH LEAVE TO AMEND DEFENDANT'S MOTION TO DISMISS by Magistrate Judge Elizabeth D. Laporte granting with leave to amend 5 Motion to Dismiss (edllc2, COURT STAFF) (Filed on 9/19/2005) (Entered: 09/19/2005)
34 AMENDED COMPLAINT First Amended Complaint For Injunctive and Declaratory Relief Pursuant to Fourteenth Amendment to the United States Constitution, 42 USC Section 1983, Title VI of the Civil Rights Act of 1964, 42 USC Section 2000d, et seq., and Cal. Gov. Code Section 11135 against Metropolitan Transportation Commission. Filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Lye, Linda) (Filed on 10/11/2005) (Entered: 10/11/2005)
35 MOTION to Dismiss Notice of Motion and Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted filed by Metropolitan Transportation Commission. Motion Hearing set for 12/6/2005 02:00 PM in Courtroom E, 15th Floor, San Francisco. (Manolius, Kimon) (Filed on 10/28/2005) (Entered: 10/28/2005)
36 Request for Judicial Notice re 35 MOTION to Dismiss Notice of Motion and Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted filed byMetropolitan Transportation Commission. (Related document(s) 35 ) (Manolius, Kimon) (Filed on 10/28/2005) (Entered: 10/28/2005)
37 Declaration of Declaration of Alix Bockelman In Support of Motion to Dismiss in Support of 35 MOTION to Dismiss Notice of Motion and Motion to Dismiss for Failure to State a Claim Upon Which Relief Can Be Granted filed byMetropolitan Transportation Commission. (Related document(s) 35 ) (Manolius, Kimon) (Filed on 10/28/2005) (Entered: 10/28/2005)
38 EXHIBITS re 37 Declaration in Support, of Motion to Dismiss for Alix Bockelman filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibit A (Part 1)# 2 Exhibit Exhibit A (Part 2)# 3 Exhibit Exhibit A (Part 3)# 4 Exhibit Exhibit B# 5 Exhibit Exhibit C)(Related document(s) 37 ) (Manolius, Kimon) (Filed on 10/31/2005) (Entered: 10/31/2005)
39 EXHIBITS re 37 Declaration in Support, of Motion to Dismiss for Alix Bockelman filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibit D (Part 1)# 2 Exhibit Exhibit D (Part 2))(Related document(s) 37 )

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 11 of 47

10/31/2005 10/31/2005 10/31/2005 10/31/2005 11/01/2005 11/01/2005 11/15/2005 11/15/2005
11/29/2005 11/29/2005 11/29/2005

(Manolius, Kimon) (Filed on 10/31/2005) (Entered: 10/31/2005)
40 EXHIBITS re 37 Declaration in Support, of Motion to Dismiss for Alix Bockelman filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibit E (Part 1)# 2 Exhibit Exhibit E (Part 2)# 3 Exhibit Exhibit E (Part 3)# 4 Exhibit Exhibit E (Part 4))(Related document(s) 37 ) (Manolius, Kimon) (Filed on 10/31/2005) (Entered: 10/31/2005)
41 EXHIBITS re 37 Declaration in Support, of Motion to Dismiss for Alix Bockelman filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibit F# 2 Exhibit Exhibit G# 3 Exhibit Exhibit H# 4 Exhibit Exhibit I (Part 1)# 5 Exhibit Exhibit I (Part 2))(Related document(s) 37 ) (Manolius, Kimon) (Filed on 10/31/2005) (Entered: 10/31/2005)
42 EXHIBITS re 37 Declaration in Support, of Motion to Dismiss for Alix Bockelman filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibit J# 2 Exhibit Exhibit K (Part 1)# 3 Exhibit Exhibit K (Part 2)# 4 Exhibit Exhibit K (Part 3)# 5 Exhibit Exhibit K (Part 4))(Related document(s) 37 ) (Manolius, Kimon) (Filed on 10/31/2005) (Entered: 10/31/2005)
43 EXHIBITS re 37 Declaration in Support, of Motion to Dismiss for Alix Bockelman filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibit L# 2 Exhibit Exhibit M)(Related document(s) 37 ) (Manolius, Kimon) (Filed on 10/31/2005) (Entered: 10/31/2005)
44 EXHIBITS re 37 Declaration in Support,, 38 Exhibits,, 39 Exhibits,, 40 Exhibits,, 41 Exhibits,, 42 Exhibits,, 43 Exhibits, Replacement Pages to Exhibits to Declaration of Alix Bockelman in Support of Motion to Dismiss filed byMetropolitan Transportation Commission. (Related document(s) 37 , 38 , 39 , 40 , 41 , 42 , 43 ) (Manolius, Kimon) (Filed on 11/1/2005) (Entered: 11/01/2005)
45 Amended MOTION to Dismiss For Failure to State a Claim Upon Which Relief Can Be Granted; Amended Memorandum of Points and Authorities in Support Thereof filed by Metropolitan Transportation Commission. Motion Hearing set for 12/13/2005 02:00 PM in Courtroom E, 15th Floor, San Francisco. (Related document(s) 36 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 ) (Manolius, Kimon) (Filed on 11/1/2005) Modified on 11/2/2005 (ewn, COURT STAFF). (Entered: 11/01/2005)
46 Renotice motion hearing re 45 Amended MOTION to Dismiss For Failure to State a Claim Upon Which Relief Can Be Granted; Amended Memorandum of Points and Authorities in Support Thereof filed byMetropolitan Transportation Commission. Motion Hearing set for 12/20/2005 02:00 PM in Courtroom E, 15th Floor, San Francisco. (Veit, Julia) (Filed on 11/15/2005) (Entered: 11/15/2005)
47 Declaration of Alix Bockelman in Support of 45 Amended MOTION to Dismiss For Failure to State a Claim Upon Which Relief Can Be Granted; Amended Memorandum of Points and Authorities in Support Thereof, 46 Renotice motion hearing,, 37 Declaration in Support,, 38 Exhibits,, 39 Exhibits,, 40 Exhibits,, 41 Exhibits,, 42 Exhibits,, 43 Exhibits,, 44 Exhibits, Amended Declaration filed byMetropolitan Transportation Commission. (Related document(s) 45 , 46 , 37 , 38 , 39 , 40 , 41 , 42 , 43 , 44 ) (Veit, Julia) (Filed on 11/15/2005) (Entered: 11/15/2005)
48 Memorandum in Opposition re 45 Amended MOTION to Dismiss For Failure to State a Claim Upon Which Relief Can Be Granted; Amended Memorandum of Points and Authorities in Support Thereof filed byVivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Sekhon, Nirej) (Filed on 11/29/2005) (Entered: 11/29/2005)
49 OBJECTIONS to Defendant MTC's Request For Judicial Notice by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Sekhon, Nirej) (Filed on 11/29/2005) (Entered: 11/29/2005)
50 MOTION to File Amicus Curiae Brief filed by American Civil Liberties Union Foundation of Northern California. (Attachments: # 1 Declaration of Julia Harumi Mass in Support of Motion for Leave to File Amicus Brief)(Mass, Julia) (Filed on

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 12 of 47

11/29/2005 11/30/2005 12/02/2005 12/06/2005 12/06/2005 12/12/2005
12/15/2005 12/19/2005 12/20/2005
12/22/2005 01/17/2006 01/20/2006 01/24/2006
01/25/2006 01/27/2006

11/29/2005) (Entered: 11/29/2005)
51 Brief of Amicus Curiae in Support of Plaintiffs' Opposition to MTC's Motion to Dismiss filed byAmerican Civil Liberties Union Foundation of Northern California. (Mass, Julia) (Filed on 11/29/2005) (Entered: 11/29/2005)
52 ORDER by Magistrate Judge Elizabeth D. Laporte granting 50 Motion to File Amicus Curiae Brief (edllc2, COURT STAFF) (Filed on 11/30/2005) (Entered: 11/30/2005)
53 OBJECTIONS to ACLU's Motion for Leave to File an Amicus Brief. Filed by Defendant Metropolitan Transportation Commission. (Veit, Julia) (Filed on 12/2/2005)....Modified on 12/9/2005 (tn, COURT STAFF). (Entered: 12/02/2005)
54 Reply to Opposition re 45 Amended MOTION to Dismiss For Failure to State a Claim Upon Which Relief Can Be Granted; Amended Memorandum of Points and Authorities in Support Thereof filed byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 12/6/2005) (Entered: 12/06/2005)
55 RESPONSE in Support Response to Objections to Request for Judicial Notice filed byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 12/6/2005) (Entered: 12/06/2005)
56 ORDER GRANTING DEFENDANT TIME TO RESPOND TO AMICUS CURIAE BRIEF re 53 Memorandum in Opposition filed by Metropolitan Transportation Commission,, 50 MOTION to File Amicus Curiae Brief filed by American Civil Liberties Union Foundation of Northern California. Signed by Magistrate Judge Elizabeth D. Laporte on December 12, 2005. (edllc2, COURT STAFF) (Filed on 12/12/2005) (Entered: 12/12/2005)
57 Memorandum in Opposition to the ACLU−NC's Brief of Amicus Curiae filed byMetropolitan Transportation Commission. (Veit, Julia) (Filed on 12/15/2005) (Entered: 12/15/2005)
58 JOINT CASE MANAGEMENT STATEMENT (Amended) filed by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Sekhon, Nirej) (Filed on 12/19/2005) (Entered: 12/19/2005)
59 Minute Entry: Hearing held on 12/20/2005 before Elizabeth D. Laporte. Defendant's Motion to Dismiss 45 − Denied. Further Case Management Conference set for 1/24/2006 10:00 AM. (Court Reporter Joan Columbini)(FTR 2:09pm−2:53pm) (lh, COURT STAFF) (Date Filed: 12/20/2005) (Entered: 12/21/2005)
60 NOTICE of Change of Address by Kimon Manolius (Manolius, Kimon) (Filed on 12/22/2005) (Entered: 12/22/2005)
61 JOINT CASE MANAGEMENT STATEMENT (Revised) filed by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Sekhon, Nirej) (Filed on 1/17/2006) (Entered: 01/17/2006)
62 ORDER DENYING DEFENDANT'S MOTION TO DISMISS by Magistrate Judge Elizabeth D. Laporte terminating 35 Motion to Dismiss, denying 45 Motion to Dismiss (edllc2, COURT STAFF) (Filed on 1/20/2006) (Entered: 01/20/2006)
63 Minute Entry: Further Case Management Conference held on 1/24/2006 before Elizabeth D. Laporte. Case referred to the Court's ADR Program for a phone conference. Court sets class certification briefing schedule and hearing set for 4/17/2007 09:00 AM. Further Case Management Conference set for 3/21/2006 10:00 AM. (FTR 10:14am − 10:51am) (lh, COURT STAFF) (Date Filed: 1/24/2006) (Entered: 01/24/2006)
64 ADR Clerks Notice Setting ADR Phone Conference on 2/9/06 at 10:30 a.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 1/25/2006) (Entered: 01/25/2006)
ADR Remark: THE ADR Phone Conference has been rescheduled to 3:00 p.m. on 2/9/06. (tjs, COURT STAFF) (Filed on 1/27/2006) (Entered: 01/27/2006)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 13 of 47

01/30/2006 02/06/2006 02/08/2006 02/09/2006 02/24/2006 02/24/2006 02/27/2006 03/07/2006 03/07/2006
03/13/2006 03/16/2006 03/21/2006 04/08/2006 05/09/2006 05/10/2006 05/15/2006 06/06/2006

65 STIPULATION Extending Defendant's Time to Respond to First Amended Complaint by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 1/30/2006) (Entered: 01/30/2006)
66 Answer to Amended Complaint Answer to First Amended Complaint byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 2/6/2006) (Entered: 02/06/2006)
67 REPORTER'S TRANSCRIPT of Proceedings Held on 12/20/2005 before Mag. Judge Elizabeth D. Laporte − [Court Reporter: Joan Marie Columbini]. (tn, COURT STAFF) (Filed on 2/8/2006) (Entered: 02/09/2006)
ADR Remark: ADR Phone Conference conducted on 2/9/06 by HAH. A further ADR Phone Conference is scheduled for 3/16/06 at 3:00 p.m. (tjs, COURT STAFF) (Filed on 2/9/2006) (Entered: 02/10/2006)
68 AMENDED ANSWER to First Amended Complaint byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 2/24/2006) (Entered: 02/24/2006)
69 STIPULATION and Protective Order by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 2/24/2006) (Entered: 02/24/2006)
70 STIPULATION AND ORDER AS MODIFIED. Signed by Magistrate Judge Elizabeth D. Laporte on February 24, 2006. (edllc2, COURT STAFF) (Filed on 2/27/2006) (Entered: 02/27/2006)
71 NOTICE by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez OF REQUEST TO APPEAR BY TELEPHONE (Sekhon, Nirej) (Filed on 3/7/2006) (Entered: 03/07/2006)
72 ORDER GRANTING APPLICATION TO APPEAR TELEPHONICALLY re 71 Notice (Other) filed by Communities for a Better Environment,, Sylvia Darensburg,, Virginia Martinez,, Vivian Hain,. Signed by Magistrate Judge Elizabeth D. Laporte on March 7, 2006. (edllc2, COURT STAFF) (Filed on 3/7/2006) (Entered: 03/07/2006)
73 JOINT CASE MANAGEMENT STATEMENT filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 3/13/2006) (Entered: 03/13/2006)
ADR Remark: ADR Phone Conference conducted on 3/16/06 by HAH. (tjs, COURT STAFF) (Filed on 3/16/2006) (Entered: 03/20/2006)
74 Minute Entry: Further Case Management Conference held on 3/21/2006 before Elizabeth D. Laporte and continued to 5/16/2006 03:00 PM. (FTR: 10:09am − 10:13am) (lh, COURT STAFF) (Date Filed: 3/21/2006) (Entered: 03/21/2006)
75 MOTION to Withdraw as Attorney filed by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Sekhon, Nirej) (Filed on 4/8/2006) (Entered: 04/08/2006)
76 NOTICE of Change of Address by Julia Harumi Mass, Esq (Mass, Julia) (Filed on 5/9/2006) (Entered: 05/09/2006)
77 JOINT CASE MANAGEMENT STATEMENT filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 5/10/2006) (Entered: 05/10/2006)
78 CLERK'S NOTICE continuing the Further Case Management Conference to 6/27/2006 at 10:00 AM. Updated Joint Case Management Statement due by 6/20/2006. (lh, COURT STAFF) (Filed on 5/15/2006) (Entered: 05/15/2006)
79 MOTION to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Lye, Linda) (Filed on 6/6/2006) (Entered: 06/06/2006)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 14 of 47

06/06/2006 06/06/2006
06/06/2006 06/06/2006 06/07/2006 06/09/2006 06/09/2006 06/13/2006
06/19/2006 06/19/2006 06/22/2006 06/22/2006

80 Declaration of Adrienne L. Bloch in Support of 79 MOTION to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Related document(s) 79 ) (Lye, Linda) (Filed on 6/6/2006) (Entered: 06/06/2006)
81 Declaration of Bill Lann Lee in Support of 79 MOTION to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J)(Related document(s) 79 ) (Lye, Linda) (Filed on 6/6/2006) (Entered: 06/06/2006)
82 Declaration of Yvonne Williams in Support of 79 MOTION to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Related document(s) 79 ) (Lye, Linda) (Filed on 6/6/2006) (Entered: 06/06/2006)
83 Proposed Order re 79 MOTION to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Lye, Linda) (Filed on 6/6/2006) (Entered: 06/06/2006)
84 CERTIFICATE OF SERVICE by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez re 80 Declaration in Support,, 79 MOTION to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11, 83 Proposed Order,, 82 Declaration in Support,, 81 Declaration in Support,, (Lye, Linda) (Filed on 6/7/2006) (Entered: 06/07/2006)
85 OBJECTIONS to re 79 MOTION to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 6/9/2006) (Entered: 06/09/2006)
86 DECLARATION of Kimon Manolius Re: Discovery Dispute filed byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 6/9/2006) (Entered: 06/09/2006)
87 ORDER SETTING BRIEFING SCHEDULE re 85 Objection filed by Metropolitan Transportation Commission,, 79 MOTION to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 filed by Communities for a Better Environment,, Sylvia Darensburg,, Virginia Martinez,, Vivian Hain,, Amalgamated Transit Union, Local 192,. Signed by Magistrate Judge Elizabeth D. Laporte on June 13, 2006. (edllc2, COURT STAFF) (Filed on 6/13/2006) (Entered: 06/13/2006)
88 Memorandum in OPPOSITION to Plaintiffs' Motion to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 Filed by Defendant Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 6/19/2006)... Modified on 6/21/2006 (tn, COURT STAFF). (Entered: 06/19/2006)
89 Declaration of Kimon Manolius in Support of 88 Memorandum in Opposition, to Plaintiffs' Motion to Enforce Agreed Upon Limits on Interrogatories and for an Extension of Time Pursuant to Local Rules 6−3 and 7−11 filed byMetropolitan Transportation Commission. (Related document(s) 88 ) (Manolius, Kimon) (Filed on 6/19/2006) (Entered: 06/19/2006)
90 JOINT CASE MANAGEMENT STATEMENT filed by Sylvia Darensburg. (Lee, Bill) (Filed on 6/22/2006) (Entered: 06/22/2006)
91 NOTICE by Sylvia Darensburg NOTICE OF WITHDRAWAL OF PLAINTIFFS' MOTION TO ENFORCE AGREED UPON LIMITS ON INTERROGATORIES AND

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 15 of 47

06/27/2006 08/22/2006
08/30/2006 08/31/2006 09/01/2006 09/05/2006 09/12/2006 09/19/2006 09/27/2006 10/20/2006 10/23/2006 10/23/2006 10/24/2006 11/03/2006 11/13/2006 12/06/2006

FOR AN EXTENSION OF TIME PURSUANT TO LOCAL RULE 7−11 (Lee, Bill) (Filed on 6/22/2006) (Entered: 06/22/2006)
92 Minute Entry: Further Case Management Conference held on 6/27/2006 before Elizabeth D. Laporte.Case continued to 8/29/2006 10:00 AM for Further Case Management Conference. (FTR 10:16am − 10:23am) (lmh, COURT STAFF) (Date Filed: 6/27/2006) (Entered: 06/27/2006)
93 JOINT CASE MANAGEMENT STATEMENT filed by Vivian Hain, Amalgamated Transit Union, Local 192, American Civil Liberties Union Foundation of Northern California, Communities for a Better Environment, Metropolitan Transportation Commission, Sylvia Darensburg, Virginia Martinez. (Lee, Bill) (Filed on 8/22/2006) (Entered: 08/22/2006)
94 Minute Entry: Further Case Management Conference held on 8/29/2006 before Elizabeth D. Laporte. (FTR 10:42am − 10:48am) (lmh, COURT STAFF) (Date Filed: 8/30/2006) (Entered: 08/30/2006)
95 ORDER FOLLOWING FURTHER CASE MANAGEMENT CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on August 31, 2006. (edllc2, COURT STAFF) (Filed on 8/31/2006) (Entered: 08/31/2006)
96 CLERK'S NOTICE setting a Further Case Management Conference for 10/24/2006 03:00 PM. Joint Case Management Statement due by 10/17/2006. (lmh, COURT STAFF) (Filed on 9/1/2006) (Entered: 09/01/2006)
97 ADR Clerks Notice Setting ADR Phone Conference on 9/12/06 at 11:00 a.m. Please take note that plaintiff's counsel initiates the call to all parties. (tjs, COURT STAFF) (Filed on 9/5/2006) (Entered: 09/05/2006)
ADR Remark: ADR Phone Conference conducted on 9/12/06 by HAH. A further phone conference has been scheduled for 9/19/06 at 11:30 a.m. (tjs, COURT STAFF) (Filed on 9/12/2006) (Entered: 09/12/2006)
ADR Remark: ADR Phone Conference conducted on 9/19/06 by HAH. A further ADR Phone Conference has been scheduled for 9/26/06 at 10:00 a.m. (tjs, COURT STAFF) (Filed on 9/19/2006) (Entered: 09/20/2006)
ADR Remark: A further ADR Phone Conference has been scheduled for 10/3/06 at 8:30 a.m. (tjs, COURT STAFF) (Filed on 9/27/2006) (Entered: 09/27/2006)
98 STIPULATION and [Proposed] Order for Mediation by Sylvia Darensburg. (Lee, Bill) (Filed on 10/20/2006) (Entered: 10/20/2006)
99 JOINT CASE MANAGEMENT STATEMENT filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Lee, Bill) (Filed on 10/23/2006) (Entered: 10/23/2006)
100 STIPULATION AND ORDER FOR MEDIATION. Signed by Magistrate Judge Elizabeth D. Laporte on October 23, 2006. (edllc2, COURT STAFF) (Filed on 10/23/2006) (Entered: 10/23/2006)
101 Minute Entry: Further Case Management Conference held on 10/24/2006 before Elizabeth D. Laporte. (FTR 3:29pm − 3:45pm) (lmh, COURT STAFF) (Date Filed: 10/24/2006) (Entered: 10/27/2006)
102 STIPULATION Joint Stipulation and [Proposed] Order Withdrawing Virginia Martinez as a Class Representative by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Hutchinson, Daniel) (Filed on 11/3/2006) (Entered: 11/03/2006)
103 STIPULATION AND ORDER WITHDRAWING VIRGINIA MARTINEZ AS A CLASS REPRESENTATIVE. Signed by Magistrate Judge Elizabeth D. Laporte on November 13, 2006. (edllc2, COURT STAFF) (Filed on 11/13/2006) (Entered: 11/13/2006)
104 CLERK'S NOTICE setting Further Case Management Conference for 12/15/2006 10:00 AM. Updated Joint Case Management Statement due by 12/8/2006. (lmh,

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 16 of 47

12/09/2006
12/14/2006 12/19/2006 01/05/2007 01/09/2007 01/10/2007 02/08/2007 02/09/2007 02/12/2007 02/14/2007 02/21/2007 02/21/2007 02/23/2007 03/21/2007 03/22/2007 03/23/2007

COURT STAFF) (Filed on 12/6/2006) (Entered: 12/06/2006)
105 JOINT CASE MANAGEMENT STATEMENT WITH EXHIBITS A AND B filed by Vivian Hain, Amalgamated Transit Union, Local 192, American Civil Liberties Union Foundation of Northern California, Communities for a Better Environment, Metropolitan Transportation Commission, Sylvia Darensburg, Virginia Martinez. (Lee, Bill) (Filed on 12/9/2006) (Entered: 12/09/2006)
106 Letter from Julia H. Veit, Hanson Bridgett, et al. to Honorable Elizabeth LaPorte. (Manolius, Kimon) (Filed on 12/14/2006) (Entered: 12/14/2006)
107 Minute Entry: Further Case Management Conference held on 12/15/2006 before Elizabeth D. Laporte. Further Case Management Conference set for 2/14/2007 09:00 AM. (FTR 9:18am−9:43am/10:01am−10:08am) (lmh, COURT STAFF) (Date Filed: 12/19/2006) (Entered: 12/20/2006)
108 NOTICE by Amalgamated Transit Union, Local 192 of Change of Firm Name (Lye, Linda) (Filed on 1/5/2007) (Entered: 01/05/2007)
109 NOTICE by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez NOTICE OF CHANGE OF FIRM OF BILL LANN LEE AND NOTICE OF APPEARANCE OF MARGARET H. HASSELMAN (Lee, Bill) (Filed on 1/9/2007) (Entered: 01/09/2007)
110 NOTICE by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg AMENDED NOTICE OF CHANGE OF FIRM OF BILL LANN LEE AND NOTICE OF APPEARANCE OF MARGARET H. HASSELMAN (Lee, Bill) (Filed on 1/10/2007) (Entered: 01/10/2007)
111 CASE MANAGEMENT STATEMENT Plaintiffs' Case Management Statement filed by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Lee, Bill) (Filed on 2/8/2007) (Entered: 02/08/2007)
112 CASE MANAGEMENT STATEMENT filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 2/9/2007) (Entered: 02/09/2007)
ADR Remark: ADR Phone Conference conducted on 2/12/07 by HAH. (tjs, COURT STAFF) (Filed on 2/12/2007) (Entered: 02/13/2007)
113 Minute Entry: Further Case Management Conference held on 2/14/2007 before Elizabeth D. Laporte. Further Case Management Conference set for 3/28/2007 04:00 PM. (FTR 9:10am−9:26am/11:23am−11:33am) (lmh, COURT STAFF) (Date Filed: 2/14/2007) (Entered: 02/15/2007)
114 STIPULATION &[PROPOSED] ORDER RE DISCOVERY AND CLASS CERTIFICATION by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Lee, Bill) (Filed on 2/21/2007) (Entered: 02/21/2007)
115 EXHIBITS re 114 Stipulation EXHIBITS A−C TO DOCKET NO. 114 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 114 ) (Lee, Bill) (Filed on 2/21/2007) (Entered: 02/21/2007)
116 ORDER re 114 Stipulation filed by Communities for a Better Environment,, Sylvia Darensburg,, Vivian Hain,, Amalgamated Transit Union, Local 192. Signed by Magistrate Judge Elizabeth D. Laporte on 2/23/2007. (edllc2, COURT STAFF) (Filed on 2/23/2007) (Entered: 02/23/2007)
117 JOINT CASE MANAGEMENT STATEMENT filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 3/21/2007) (Entered: 03/21/2007)
ADR Remark: ADR Phone Conference conducted on 3/22/07 by HAH. (tjs, COURT STAFF) (Filed on 3/22/2007) (Entered: 03/23/2007)
ADR Remark: A further ADR Phone Conference has been scheduled for 5/22/07. (tjs, COURT STAFF) (Filed on 3/23/2007) (Entered: 03/23/2007)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 17 of 47

04/09/2007
04/20/2007 04/26/2007 05/02/2007 05/24/2007 05/31/2007 06/06/2007 06/08/2007 06/29/2007 07/05/2007
07/05/2007 07/25/2007 07/30/2007 09/19/2007 09/20/2007
10/15/2007

118 Minute Entry: Further Case Management Conference held on 3/28/2007 before Elizabeth D. Laporte. Court sets dates re email production. Further Case Management Conference set for 4/27/2007 10:00 AM. (FTR Digitial Recorder: 4:06pm − 4:20pm) (lmh, COURT STAFF) (Date Filed: 4/9/2007) (Entered: 04/09/2007)
119 JOINT CASE MANAGEMENT STATEMENT filed by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 4/20/2007) (Entered: 04/20/2007)
120 Letter from Kim Manolius &Bill Lee REQUEST TO CONTINUE AND RESCHEDULE CMC. (Lee, Bill) (Filed on 4/26/2007) (Entered: 04/26/2007)
121 CLERK'S NOTICE SETTING Further Case Management Conference for 6/6/2007 02:00 PM. Joint Updated Case Management Statement due by 5/30/2007. (lmh, COURT STAFF) (Filed on 5/2/2007) (Entered: 05/02/2007)
ADR Remark: ADR Phone Conference conducted on 5/24/07 by HAH. A further phone conference has been scheduled for 6/19/07. (tjs, COURT STAFF) (Filed on 5/24/2007) (Entered: 05/25/2007)
122 JOINT CASE MANAGEMENT STATEMENT filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Metropolitan Transportation Commission, Sylvia Darensburg. (Lee, Bill) (Filed on 5/31/2007) (Entered: 05/31/2007)
124 Minute Entry: Further Case Management Conference held on 6/6/2007 before Elizabeth D. Laporte. Further Case Management Conference set for 7/5/2007 02:00 PM. (FTR 2:39pm − 3:03pm) (lmh, COURT STAFF) (Date Filed: 6/6/2007) (Entered: 06/12/2007)
123 ORDER Following Further Case Management Conference Signed by Magistrate Judge Elizabeth D. Laporte on June 8, 2007. (khlc, COURT STAFF) (Filed on 6/8/2007) (Entered: 06/08/2007)
125 JOINT CASE MANAGEMENT STATEMENT filed by Communities for a Better Environment. (Veit, Julia) (Filed on 6/29/2007) (Entered: 06/29/2007)
126 Minute Entry: Further Case Management Conference held on 7/5/2007 before Elizabeth D. Laporte. Parties shall submit a joint statement with proposed schedule by 7/27/07. Further Case Management Conference to be set for 8/7/07 at 2:00 PM, if necessary. (FTR 2:13pm − 2:33pm) (lmh, COURT STAFF) (Date Filed: 7/5/2007) (Entered: 07/05/2007)
Set Deadlines/Hearings: Further Case Management Conference set for 8/7/2007 02:00 PM. (sis, COURT STAFF) (Filed on 7/5/2007) (Entered: 07/09/2007)
127 NOTICE by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg of Association of Counsel (Hasselman, Margaret) (Filed on 7/25/2007) (Entered: 07/25/2007)
128 JOINT CASE MANAGEMENT STATEMENT (Joint Scheduling Statement) filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Hasselman, Margaret) (Filed on 7/30/2007) (Entered: 07/30/2007)
129 Proposed Order (Scheduling Order) by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 9/19/2007) (Entered: 09/19/2007)
130 STIPULATION AND SCHEDULING ORDER re 129 Proposed Order filed by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Vivian Hain, Sylvia Darensburg. Signed by Magistrate Judge Elizabeth D. Laporte on September 19, 2007. (edllc2, COURT STAFF) (Filed on 9/20/2007) (Entered: 09/20/2007)
131 CASE MANAGEMENT STATEMENT filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 10/15/2007) (Entered: 10/15/2007)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 18 of 47

10/16/2007 10/17/2007 10/19/2007 10/22/2007 10/23/2007 11/01/2007
11/13/2007 11/14/2007 11/16/2007 11/20/2007 12/04/2007 12/04/2007 12/07/2007 12/10/2007

132 CASE MANAGEMENT STATEMENT filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 10/16/2007) (Entered: 10/16/2007)
133 CLERK'S NOTICE SETTING Further Case Management Conference for 10/22/2007 02:30 PM. (lmh, COURT STAFF) (Filed on 10/17/2007) (Entered: 10/17/2007)
134 EXHIBITS re 131 Case Management Statement (Exhibit 1) filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 131 ) (Hasselman, Margaret) (Filed on 10/19/2007) (Entered: 10/19/2007)
136 Minute Entry: Further Case Management Conference held on 10/22/2007 before Elizabeth D. Laporte. Updated joint case management statement due 11/13/2007. Further Case Management Conference set for 11/16/2007 02:00 PM. (FTR 2:37pm − 2:56pm) (lmh, COURT STAFF) (Date Filed: 10/22/2007) (Entered: 10/24/2007)
135 ORDER FOLLOWING OCTOBER 22, 2007 CASE MANAGEMENT CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on October 23, 2007. (edllc2, COURT STAFF) (Filed on 10/23/2007) (Entered: 10/23/2007)
137 AMENDED COMPLAINT SECOND AMENDED COMPLAINT FOR INJUNCTIVE AND DECLARATORY RELIEF PURSUANT TO FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION, 42 U.S.C. § 1983, TITLE VI OF THE CIVIL RIGHTS ACT OF 1964, 42 U.S.C. § 2000d, ET SEQ., AND CAL. GOV. CODE § 11135 against Metropolitan Transportation Commission. Filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Lee, Bill) (Filed on 11/1/2007) (Entered: 11/01/2007)
140 Minute Entry: Further Case Management Conference held on 11/16/2007 before Elizabeth D. Laporte. Further Case Management Conference set for 12/7/2007 02:00 PM. (FTR 2:11pm − 2:20pm) (lmh, COURT STAFF) (Date Filed: 11/13/2007) (Entered: 11/18/2007)
138 JOINT CASE MANAGEMENT STATEMENT filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 11/14/2007) (Entered: 11/14/2007)
139 ORDER FOLLOWING CASE MANAGEMENT CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on November 16, 2007. (edllc2, COURT STAFF) (Filed on 11/16/2007) (Entered: 11/16/2007)
141 Answer to Second Amended Complaint by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 11/20/2007) (Entered: 11/20/2007)
142 JOINT CASE MANAGEMENT STATEMENT filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Hasselman, Margaret) (Filed on 12/4/2007) (Entered: 12/04/2007)
143 AMENDED DOCUMENT by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. Amendment to 142 Case Management Statement (Joint). (Lee, Bill) (Filed on 12/4/2007) (Entered: 12/04/2007)
144 STIPULATION AND [PROPOSED] ORDER by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Metropolitan Transportation Commission, Sylvia Darensburg. (Lee, Bill) (Filed on 12/7/2007) (Entered: 12/07/2007)
145 STIPULATION AND ORDER re 144 Stipulation filed by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Metropolitan Transportation Commission, Vivian Hain, Sylvia Darensburg. Signed by Magistrate Judge Elizabeth D. Laporte on December 10, 2007. (edllc2, COURT STAFF) (Filed on 12/10/2007) (Entered: 12/10/2007)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 19 of 47

12/12/2007 12/13/2007 12/13/2007 12/14/2007 12/17/2007 01/31/2008 01/31/2008
01/31/2008
01/31/2008
02/20/2008 02/21/2008 03/11/2008 03/12/2008

146 Letter from Attorneys for Plaintiff Sylvia Darensburg to Judge Laporte re Deposition Topic E. (Santamaria, Jessica) (Filed on 12/12/2007) (Entered: 12/12/2007)
147 Letter from Defendant Metropolitan Transportation Commission to Judge LaPorte in Response to Plaintiff Sylvia Darensburg's December 12, 2007 Letter re Deposition Topic E. (Manolius, Kimon) (Filed on 12/13/2007) (Entered: 12/13/2007)
148 ORDER REQUIRING REPLY LETTER AND SETTING TELEPHONIC CONFERENCE re 146 Letter filed by Sylvia Darensburg, 147 Letter filed by Metropolitan Transportation Commission. Signed by Magistrate Judge Elizabeth D. Laporte on December 13, 2007. (edllc2, COURT STAFF) (Filed on 12/13/2007) (Entered: 12/13/2007)
149 Letter from Jessica Valenzuela Santamaria Reply Letter Brief. (Santamaria, Jessica) (Filed on 12/14/2007) (Entered: 12/14/2007)
150 Minute Entry: Telephone Conference Call re discovery dispute held on 12/17/2007. (FTR 10:14am − 10:25am) (lmh, COURT STAFF) (Date Filed: 12/17/2007) (Entered: 12/17/2007)
151 MOTION to Compel Discovery Responses; Memorandum of Points and Authorities in Support Thereof filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. Motion Hearing set for 3/11/2008 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Hasselman, Margaret) (Filed on 1/31/2008) (Entered: 01/31/2008)
152 Declaration of Margaret Hasselman in Support of 151 MOTION to Compel Discovery Responses; Memorandum of Points and Authorities in Support Thereof filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit Exhs. 1−2)(Related document(s) 151 ) (Hasselman, Margaret) (Filed on 1/31/2008) (Entered: 01/31/2008)
153 Declaration of Richard Marcantonio in Support of 151 MOTION to Compel Discovery Responses; Memorandum of Points and Authorities in Support Thereof filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 1−4)(Related document(s) 151 ) (Hasselman, Margaret) (Filed on 1/31/2008) (Entered: 01/31/2008)
154 Declaration of Daniel Hutchinson in Support of 151 MOTION to Compel Discovery Responses; Memorandum of Points and Authorities in Support Thereof filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 1)(Related document(s) 151 ) (Hasselman, Margaret) (Filed on 1/31/2008) (Entered: 01/31/2008)
155 STIPULATION and [Proposed] Order re Extension of Plaintiffs' Deadline to File Motion to Compel Regarding Documents Withheld as Privileged and Withdrawing Motion to Compel Production of Privilege Log by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 2/20/2008) (Entered: 02/20/2008)
156 STIPULATION AND ORDER re 155 Stipulation, filed by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Vivian Hain, Sylvia Darensburg. Signed by Magistrate Judge Elizabeth D. Laporte on February 21, 2008. (edllc2, COURT STAFF) (Filed on 2/21/2008) (Entered: 02/21/2008)
157 STIPULATION Second Stipulation and [Proposed] Order re Extension of Plaintiffs' Deadline to File Motion to Compel by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 3/11/2008) (Entered: 03/11/2008)
158 STIPULATION AND ORDER re 157 Stipulation, filed by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Vivian Hain, Sylvia Darensburg. Signed by Magistrate Judge Elizabeth D. Laporte on March 12, 2008.

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 20 of 47

03/13/2008 03/14/2008 03/14/2008 03/17/2008 03/17/2008 04/01/2008 04/01/2008
04/01/2008
04/01/2008
04/01/2008
04/01/2008

(edllc2, COURT STAFF) (Filed on 3/12/2008) (Entered: 03/12/2008)
159 Letter from Def. Metropolitan Transportation Commission to Judge LaPorte re Expert Deposition per LR 37−1. (Veit, Julia) (Filed on 3/13/2008) (Entered: 03/13/2008)
160 Letter from Heather Dunn Navarro to Hon. Laporte in response to Defendants letter brief dated 3/13/08. (Dunn Navarro, Heather) (Filed on 3/14/2008) (Entered: 03/14/2008)
161 NOTICE by Metropolitan Transportation Commission Notice of Change of Law Firm Name (Manolius, Kimon) (Filed on 3/14/2008) (Entered: 03/14/2008)
162 Minute Entry: Telephonic Conference Call re Discovery held on 3/17/2008 before Elizabeth D. Laporte. (FTR 10:09am − 10:22am) (lmh, COURT STAFF) (Date Filed: 3/17/2008) (Entered: 03/17/2008)
163 ORDER FOLLOWING TELEPHONIC CONFERENCE − Signed by Judge Elizabeth D. Laporte on 3/17/08. (lmh, COURT STAFF) (Filed on 3/17/2008) (Entered: 03/17/2008)
164 [Proposed] Order GRANTING re 175 PLAINTIFFS MOTION FOR SUMMARY ADJUDICATION Submitted by Plaintiffs Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
165 Declaration of Richard Berk In Support of re 175 Plaintiffs' Motion for Summary Adjudication filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 1, # 2 Exhibit A to Exhibit 1, # 3 Exhibit B to Exhibit 1, *** # 4 Exhibit 2 FILED IN ERROR. DOCUMENT LOCKED. PLEASE SEE DOCKET # 176 . *** )(Lee, Bill) (Filed on 4/1/2008) Modified on 4/3/2008 (ewn, COURT STAFF). (Entered: 04/01/2008)
166 Declaration of Thomas W. Sanchez In Support of re 175 Plaintiffs' Motion for Summary Adjudication Filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 1 (Part 1), # 2 Exhibit 1 (Part 2), # 3 Exhibit A to Exhibit 1, # 4 Exhibit B to Exhibit 1, # 5 Exhibit C to Exhibit 1, # 6 Exhibit 2)(Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
167 Declaration of Thomas A. Rubin In Support of re 175 Plaintiffs' Motion for Summary Adjudication filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 1 (Part 1), # 2 Exhibit 1 (Part 2), # 3 Exhibit 1 (Part 3), # 4 Exhibit A to Exhibit 1, # 5 Exhibit B to Exhibit 1, # 6 Exhibit C to Exhibit 1, # 7 Exhibit D to Exhibit 1, # 8 Exhibit E to Exhibit 1, # 9 Exhibit F to Exhibit 1, # 10 Exhibit G to Exhibit 1, # 11 Exhibit H to Exhibit 1)(Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
168 EXHIBITS re 167 Declaration in Support,, EXHIBITS 2−3 TO DECLARATION OF THOMAS A RUBIN IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit 3)(Related document(s) 167 ) (Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
169 Declaration of Richard Marcantonio In Support of re 175 Plaintiffs' Motion for Summary Adjudication Filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11 (Part 1), # 12 Exhibit 11 (Part 2), # 13 Exhibit 11 (Part 3))(Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 21 of 47

04/01/2008
04/01/2008
04/01/2008
04/01/2008
04/01/2008 04/01/2008 04/01/2008 04/02/2008 04/22/2008 04/22/2008

170 EXHIBITS re 169 Declaration in Support,, EXHIBITS 12−25 TO DECLARATION OF RICHARD MARCANTONIO IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 13, # 2 Exhibit 14, # 3 Exhibit 15, # 4 Exhibit 16, # 5 Exhibit 17, # 6 Exhibit 18, # 7 Exhibit 19, # 8 Exhibit 20, # 9 Exhibit 21, # 10 Exhibit 22, # 11 Exhibit 23, # 12 Exhibit 24, # 13 Exhibit 25)(Related document(s) 169 ) (Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
171 EXHIBITS re 169 Declaration in Support,, EXHIBITS 26−40 TO DECLARATION OF RICHARD MARCANTONIO IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 27, # 2 Exhibit 28, # 3 Exhibit 29, # 4 Exhibit 30, # 5 Exhibit 31, # 6 Exhibit 32, # 7 Exhibit 33, # 8 Exhibit 34, # 9 Exhibit 35, # 10 Exhibit 36, # 11 Exhibit 37, # 12 Errata 38, # 13 Exhibit 39 (Part 1), # 14 Exhibit 39 (Part 2), # 15 Exhibit 40)(Related document(s) 169 ) (Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
172 EXHIBITS re 169 Declaration in Support,, EXHIBITS 41−54 TO DECLARATION OF RICHARD MARCANTONIO IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 42, # 2 Exhibit 43, # 3 Exhibit 44, # 4 Exhibit 45, # 5 Exhibit 46, # 6 Exhibit 47, # 7 Exhibit 48, # 8 Exhibit 49, # 9 Exhibit 50, # 10 Exhibit 51, # 11 Exhibit 52, # 12 Exhibit 53, # 13 Exhibit 54)(Related document(s) 169 ) (Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
173 EXHIBITS re 169 Declaration in Support,, EXHIBITS 55−65 TO DECLARATION OF RICHARD MARCANTONIO IN SUPPORT OF PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 56, # 2 Exhibit 57, # 3 Exhibit 58, # 4 Exhibit 59, # 5 Exhibit 60, # 6 Exhibit 61 (Part 1), # 7 Exhibit 61 (Part 2), # 8 Exhibit 61 (Part 3), # 9 Errata 62, # 10 Exhibit 63, # 11 Exhibit 64, # 12 Exhibit 65)(Related document(s) 169 ) (Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
174 Appendix of State Law Authority Cited In Support of re 175 Plaintiffs' Motion for Summary Adjudication Filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: #(1) Exhibit 1−5, #(2) Exhibit 6−8, #(3) Exhibit 9−10). (Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
175 PLAINTIFFS' NOTICE OF MOTION AND MOTION FOR SUMMARY ADJUDICATION, AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION. Motion Hearing Set for 6/24/2008 at 9:00 a.m.. Filed by Plaintiffs Sylvia Darensburg, Vivian Hain, Amalgamated Transit Union, Local 192 &Communities for a Better Environment. (Lee, Bill) (Filed on 4/1/2008) (Entered: 04/01/2008)
Set/Reset Deadlines as to re 175 Motion for Summary Adjudication. Motion Hearing set for 6/24/2008 at 9:00 AM. (tn, COURT STAFF) (Entered: 04/08/2008)
176 Sylvia Darensburg Amendment to re 165 Declaration in Support, AMENDED EXHIBIT 2 TO THE DECLARATION OF RICHARD BERK IN SUPPORT OF MOTION FOR SUMMARY ADJUDICATION. (Dunn Navarro, Heather) (Filed on 4/2/2008) (Entered: 04/02/2008)
177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE filed by Metropolitan Transportation Commission. Motion Hearing set for 6/24/2008 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Hofmann, Adam) (Filed on 4/22/2008) (Entered: 04/22/2008)
178 Declaration of Adam W. Hofmann in Support of 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibits A−N to Declaration of Adam W. Hofmann in Support Motion for Summary Judgment, # 2 Exhibit Exhibits O−U to

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 22 of 47

04/22/2008 04/22/2008 04/22/2008 04/22/2008 04/22/2008 04/22/2008 04/22/2008 04/23/2008
04/23/2008
04/23/2008

Declaration of Adam W. Hofmann in Support of Motion for Summary Judgment, # 3 Exhibit Exhibits V−W to Declaration of Adam W. Hofmann in Support of Motion for Summary Judgment)(Related document(s) 177 ) (Hofmann, Adam) (Filed on 4/22/2008) (Entered: 04/22/2008)
179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing filed by Metropolitan Transportation Commission. Motion Hearing set for 6/24/2008 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Veit, Julia) (Filed on 4/22/2008) (Entered: 04/22/2008)
180 Appendix re 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE filed byMetropolitan Transportation Commission. (Related document(s) 177 ) (Hofmann, Adam) (Filed on 4/22/2008) (Entered: 04/22/2008)
181 Proposed Order re 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE by Metropolitan Transportation Commission. (Hofmann, Adam) (Filed on 4/22/2008) (Entered: 04/22/2008)
182 Declaration of Julia H. Veit in Support of 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A and B, # 2 Exhibit C − F, # 3 Exhibit G, # 4 Exhibit H−I)(Related document(s) 179 ) (Veit, Julia) (Filed on 4/22/2008) (Entered: 04/22/2008)
183 Declaration of Alan Zahradnik in Support of 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing filed byMetropolitan Transportation Commission. (Related document(s) 179 ) (Veit, Julia) (Filed on 4/22/2008) (Entered: 04/22/2008)
184 Declaration of James De Hart in Support of 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing filed byMetropolitan Transportation Commission. (Related document(s) 179 ) (Veit, Julia) (Filed on 4/22/2008) (Entered: 04/22/2008)
185 Memorandum in Opposition to re 175 Plaintiff's Motion for Summary Adjudication Filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 4/22/2008) (Entered: 04/23/2008)
186 Declaration of Kathleen Kelly in Support of 181 Proposed Order, 183 Declaration in Support, 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 185 Memorandum in Opposition, 182 Declaration in Support, 178 Declaration in Support,, 180 Appendix, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE, 184 Declaration in Support, filed byMetropolitan Transportation Commission. (Related document(s) 181 , 183 , 179 , 185 , 182 , 178 , 180 , 177 , 184 ) (Hofmann, Adam) (Filed on 4/23/2008) (Entered: 04/23/2008)
187 Declaration of Nancy Skowbo in Support of 181 Proposed Order, 183 Declaration in Support, 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 185 Memorandum in Opposition, 178 Declaration in Support,, 180 Appendix, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE, 184 Declaration in Support, filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibits A−C to Declaration of Nancy Skowbo, # 2 Exhibit Exhibit D to Declaration of Nancy Skowbo, # 3 Exhibit Exhibits E−H to Declaration of Nancy Skowbo)(Related document(s) 181 , 183 , 179 , 185 , 178 , 180 , 177 , 184 ) (Hofmann, Adam) (Filed on 4/23/2008) (Entered: 04/23/2008)
188 Declaration of Deborah McClain in Support of 181 Proposed Order, 183 Declaration in Support, 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 185 Memorandum in Opposition, 182 Declaration in Support, 178 Declaration in Support,, 180 Appendix, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE, 184 Declaration in Support, filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exhibit A to Declaration of Deborah McClain)(Related document(s) 181 , 183 , 179 , 185 , 182 , 178 , 180 , 177 , 184 ) (Hofmann, Adam) (Filed on

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 23 of 47

04/23/2008
04/23/2008
04/23/2008
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4/23/2008) (Entered: 04/23/2008)
189 Declaration of Stefan Boedeker in Support of 181 Proposed Order, 183 Declaration in Support, 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 185 Memorandum in Opposition, 182 Declaration in Support, 178 Declaration in Support,, 180 Appendix, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE, 184 Declaration in Support, filed byMetropolitan Transportation Commission. (Related document(s) 181 , 183 , 179 , 185 , 182 , 178 , 180 , 177 , 184 ) (Hofmann, Adam) (Filed on 4/23/2008) (Entered: 04/23/2008)
190 Declaration of Robert Cervero in Support of 181 Proposed Order, 183 Declaration in Support, 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 185 Memorandum in Opposition, 182 Declaration in Support, 178 Declaration in Support,, 180 Appendix, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE, 184 Declaration in Support, filed byMetropolitan Transportation Commission. (Related document(s) 181 , 183 , 179 , 185 , 182 , 178 , 180 , 177 , 184 ) (Hofmann, Adam) (Filed on 4/23/2008) (Entered: 04/23/2008)
191 Declaration of Therese McMillan in Support of 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 185 Memorandum in Opposition, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, part 1, # 4 Exhibit C, part 2, # 5 Exhibit D−E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, part 1, # 11 Exhibit J, part 2, # 12 Exhibit K−M, # 13 Exhibit M−Z, # 14 Exhibit AA−BB, # 15 Exhibit CC)(Related document(s) 179 , 185 , 177 ) (Veit, Julia) (Filed on 4/23/2008) (Entered: 04/23/2008)
192 Declaration of Declaration of Kimon Manolius in Support of Defendant's Opposition to Plaintiffs' Motion for Summary Adjudication in Support of 185 Memorandum in Opposition filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit Exh. A, # 2 Exhibit Exh. B, # 3 Exhibit Exh. C, # 4 Exhibit Exh. D, # 5 Exhibit Exh. E)(Related document(s) 185 ) (Manolius, Kimon) (Filed on 4/23/2008) (Entered: 04/23/2008)
193 OBJECTIONS to re 185 Memorandum in Opposition Defendant's Objections to Evidence Submitted by Plaintiffs in Support of Summary Adjudication by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 4/23/2008) (Entered: 04/23/2008)
194 NOTICE by Metropolitan Transportation Commission Defendant's Notice of Motion and Motion for Order to Exclude Expert Testimony and Evidence by Richard Berk and Thomas A. Rubin [Pursuant to FRE 702, 703, 705]; Memorandum of Points and Authorities (Manolius, Kimon) (Filed on 4/23/2008) (Entered: 04/23/2008)
195 MOTION for Summary Judgment Or in the Alternative Partial Summary Judgment filed by Metropolitan Transportation Commission. Motion Hearing set for 6/24/2008 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Attachments: # 1 Proposed Order)(Veit, Julia) (Filed on 4/23/2008) (Entered: 04/23/2008)
196 Declaration of Warren Webster in Support of 195 MOTION for Summary Judgment Or in the Alternative Partial Summary Judgment filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A−F)(Related document(s) 195 ) (Veit, Julia) (Filed on 4/23/2008) (Entered: 04/23/2008)
197 Memorandum in Opposition (Amended) of Defendant Metropolitan Transportation Commission to re 175 Plaintiffs' Motion for Summary Adjudication [re 185] Filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 4/23/2008) (Entered: 04/23/2008)
198 MOTION to Strike 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE or, in the alternative,, MOTION for Extension of Time to File Response/Reply to MTC's Motions for Summary Judgment filed by

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 24 of 47

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Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Appendix A)(Hasselman, Margaret) (Filed on 4/25/2008) (Entered: 04/25/2008)
199 Declaration of Bill Lann Lee in Support of 198 MOTION to Strike 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE or, in the alternative, MOTION to Strike 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE or, in the alternative, MOTION to Strike 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE or, in the alternative, MOTION for Extension of Time to File Response/Reply to MTC's Motions for Summary Judgment filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 1−3)(Related document(s) 198 ) (Hasselman, Margaret) (Filed on 4/25/2008) (Entered: 04/25/2008)
200 Memorandum in Opposition re 198 MOTION to Strike 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE or, in the alternative, MOTION to Strike 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE or, in the alternative, MOTION to Strike 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE or, in the alternative, MOTION for Extension of Time to File Response/Reply to MTC's Motions for Summary Judgment filed byMetropolitan Transportation Commission. (Attachments: # 1 Proposed Order Denying Pltfs.' Administrative Motion to Strike, or in the Alternative, for Extension of Time To File Pltfs.' Reply and Opposition on Motions for Summary Judgment)(Veit, Julia) (Filed on 4/29/2008) (Entered: 04/29/2008)
201 ORDER by Magistrate Judge Elizabeth D. Laporte denying 198 Motion to Strike ; granting 198 Motion for Extension of Time to File Response/Reply (edllc2, COURT STAFF) (Filed on 5/2/2008) (Entered: 05/02/2008)
202 STIPULATION re 186 Declaration in Support,, 187 Declaration in Support,, AND [PROPOSED] ORDER RE SUBSTITUTION OF AMENDED DECLARATIONS OF KATHLEEN KELLY AND NANCY SKOWBO FOR ORIGINAL DECLARATIONS OF KATHLEEN KELLY AND NANCY SKOWBO FILED ON APRIL 22, 2008 IN SUPPORT OF MTC'S MOTIONS FOR SUMMARY JUDGMENT AND IN OPPOSITION TO PLAINTIFFS' MOTION FOR SUMMARY ADJUDUCATION by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 5/22/2008) (Entered: 05/22/2008)
203 STIPULATION AND ORDER RE SUBSTITUTION of Amended Declarations of Kathleen Kelly and Nancy Scowbo re 202 . Signed by Judge Elizabeth D. Laporte on 5/23/08. (lmh, COURT STAFF) (Filed on 5/23/2008) (Entered: 05/23/2008)
204 Declaration of Kathleen Kelly in Support of 186 Declaration in Support,, Amended Declaration Re: AC Transit Documents filed byMetropolitan Transportation Commission. (Related document(s) 186 ) (Veit, Julia) (Filed on 5/27/2008) (Entered: 05/27/2008)
205 Declaration of Nancy Skowbo in Support of 187 Declaration in Support,, Amended Declaration Re: AC Transit Documents filed byMetropolitan Transportation Commission. (Related document(s) 187 ) (Veit, Julia) (Filed on 5/27/2008) (Entered: 05/27/2008)
206 DECLARATION of Richard A. Marcantonio in Opposition to 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 197 Memorandum in Opposition, 195 MOTION for Summary Judgment Or in the Alternative Partial Summary Judgment, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg.

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(Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Related document(s) 179 , 197 , 195 , 177 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
207 EXHIBITS re 206 Declaration in Opposition,, Exhibit 4 (part 1) filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
208 EXHIBITS re 206 Declaration in Opposition,, Exhibit 4 (part 2) filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
209 EXHIBITS re 206 Declaration in Opposition,, Exhibits 5 (part 1) through 23 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 5 part 2, # 2 Exhibit 6, # 3 Exhibit 7, # 4 Exhibit 8, # 5 Exhibit 9, # 6 Exhibit 10, # 7 Exhibit 11, # 8 Exhibit 12, # 9 Exhibit 13, # 10 Exhibit 14, # 11 Exhibit 15, # 12 Exhibit 16, # 13 Exhibit 17, # 14 Exhibit 18, # 15 Exhibit 19, # 16 Exhibit 20, # 17 Exhibit 21, # 18 Exhibit 22, # 19 Exhibit 23)(Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
210 EXHIBITS re 206 Declaration in Opposition,, Exhibits 24 through 43 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 25, # 2 Exhibit 26, # 3 Exhibit 27, # 4 Exhibit 28, # 5 Exhibit 29, # 6 Exhibit 30, # 7 Exhibit 31, # 8 Exhibit 32, # 9 Exhibit 33, # 10 Exhibit 34, # 11 Exhibit 35, # 12 Exhibit 36, # 13 Exhibit 37, # 14 Exhibit 38, # 15 Exhibit 39, # 16 Exhibit 40, # 17 Exhibit 41, # 18 Exhibit 42, # 19 Exhibit 43)(Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
211 EXHIBITS re 206 Declaration in Opposition,, Exhibits 44−53 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 45, # 2 Exhibit 46, # 3 Exhibit 47, # 4 Exhibit 48 part 1, # 5 Exhibit 48 part 2, # 6 Exhibit 48 part 3, # 7 Exhibit 48 part 4, # 8 Exhibit 48 part 5, # 9 Exhibit 48 part 6, # 10 Exhibit 48 part 7, # 11 Exhibit 48 part 8, # 12 Exhibit 48 part 9, # 13 Exhibit 48 part 10, # 14 Exhibit 48 part 11, # 15 Exhibit 49, # 16 Exhibit 50, # 17 Exhibit 51, # 18 Exhibit 52, # 19 Exhibit 53)(Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
212 EXHIBITS re 206 Declaration in Opposition,, Exhibits 54 through 60 (parts 1−13) filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 55, # 2 Exhibit 56, # 3 Exhibit 57, # 4 Exhibit 58, # 5 Exhibit 59 part 1, # 6 Exhibit 59 part 2, # 7 Exhibit 60 part 1, # 8 Exhibit 60 part 2, # 9 Exhibit 60 part 3, # 10 Exhibit 60 part 4, # 11 Exhibit 60 part 5, # 12 Exhibit 60 part 6, # 13 Exhibit 60 part 7, # 14 Exhibit 60 part 8, # 15 Exhibit 60 part 9, # 16 Exhibit 60 part 10, # 17 Exhibit 60 part 11, # 18 Errata 60 part 12, # 19 Exhibit 60 part 13)(Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
213 EXHIBITS re 206 Declaration in Opposition,, Exhibits 60 (parts 14−21) through 70 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 60 part 15, # 2 Exhibit 60 part 16, # 3 Exhibit 60 part 17, # 4 Exhibit 60 part 18, # 5 Exhibit 60 part 19, # 6 Exhibit 60 part 20, # 7 Exhibit 60 part 21, # 8 Exhibit 61, # 9 Exhibit 62, # 10 Exhibit 63, # 11 Exhibit 64 part 1, # 12 Exhibit 64 part 2, # 13 Exhibit 65, # 14 Exhibit 66, # 15 Exhibit 67, # 16 Exhibit 68 part 1, # 17 Exhibit 68 part 2, # 18 Exhibit 69, # 19 Exhibit 70)(Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
214 EXHIBITS re 206 Declaration in Opposition,, Exhibits 71−85 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit 71 part 2, # 2 Exhibit 71 part 3, # 3 Exhibit 71 part 4, # 4 Exhibit 71 part 5, # 5 Exhibit 72, # 6 Exhibit 73, # 7 Exhibit 74, # 8 Exhibit 75, # 9 Exhibit 76, # 10 Exhibit 77 part 1, # 11 Errata 77 part 2, # 12 Exhibit 78, # 13 Exhibit 79, # 14 Exhibit 80, # 15 Exhibit 81, # 16 Exhibit 82, #

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17 Exhibit 83, # 18 Exhibit 84, # 19 Exhibit 85)(Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
215 EXHIBITS re 206 Declaration in Opposition,, Exhibits 86 through 88 filed byVivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Exhibit 87 part 1, # 2 Exhibit 87 part 2, # 3 Exhibit 87 part 3, # 4 Exhibit 88)(Related document(s) 206 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
216 Reply Memorandum re 179 MOTION for Summary Judgment Against Plaintiffs and the Plaintiff Class for Lack of Standing, 195 MOTION for Summary Judgment Or in the Alternative Partial Summary Judgment, 177 MOTION for Summary Judgment Against Plaintiff's ATU and CBE (Combined Reply Memorandum and Opposition re Motions for Summary Judgment and Summary Adjudication) filed byVivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Appendix 1, # 2 Appendix 2, # 3 Appendix 3, # 4 Appendix 4)(Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
217 *** FILED IN ERROR. PLEASE REFER TO DOCUMENT 234 . *** Declaration of Sylvia Darensburg in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg, Virginia Martinez. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) Modified on 6/10/2008 (feriab, COURT STAFF). (Entered: 06/03/2008)
218 Declaration of Vivian Hain in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg, Virginia Martinez. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
219 Declaration of Concepcion Chavez in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
220 Declaration in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
221 Declaration of Virginia Martinez in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg, Virginia Martinez. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
222 Declaration of Rebecca Jones−White in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
223 Declaration of Margo Robinson in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
224 Declaration of Yvonne Williams in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)

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225 Declaration of Jose Casias in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
226 AFFIDAVIT re 216 Reply Memorandum,, Declaration of Linda A. Nemeroff re: AC Transit Documents by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
227 Memorandum in Opposition to re 194 Defendant's Motion for Order to Exclude Expert Testimony and Evidence by Richard Berk and Thomas A. Rubin Filed by Vivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg, Virginia Martinez. (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
228 RESPONSE to Defendant's Objections to Evidence Submitted by Plaintiffs in Support of Their Motion for Summary Adjudication by Vivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg, Virginia Martinez. (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
229 Declaration of Candice Elder in Support of 216 Reply Memorandum,, and Opposition re Motions for Summary Judgment and Summary Adjudication filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
230 OBJECTIONS to Evidence Cited by Defendant in Support of its Opposition to Plaintiffs' Motion for Summary Adjudication and Cross−Motions for Summary Judgment by Vivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg, Virginia Martinez. (Lee, Bill) (Filed on 6/3/2008) (Entered: 06/03/2008)
231 ERRATA re 216 Reply Memorandum,, and Opposition by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Appendix (Corrected Tables))(Lee, Bill) (Filed on 6/5/2008) (Entered: 06/05/2008)
232 MOTION to Strike DEFENDANTS ADMINISTRATIVE MOTION TO STRIKE PLAINTIFFS COMBINED REPLY AND OPPOSITION FOR VIOLATION OF COURTS ORDER ON PAGE LIMITS, OR IN THE ALTERNATIVE, FOR EXTENSION OF TIME TO FILE COMBINED REPLY BRIEF AND TO SUBMIT TEN ADDITIONAL PAGES IN REPLY filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 6/6/2008) (Entered: 06/06/2008)
233 Memorandum in Opposition re 232 MOTION to Strike DEFENDANTS ADMINISTRATIVE MOTION TO STRIKE PLAINTIFFS COMBINED REPLY AND OPPOSITION FOR VIOLATION OF COURTS ORDER ON PAGE LIMITS, OR IN THE ALTERNATIVE, FOR EXTENSION OF TIME TO FILE COMBINED REPLY BRIEF AND TO SUBMIT TEN ADDITIONA filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 6/9/2008) (Entered: 06/09/2008)
234 Declaration of Sylvia Darensburg in Support of 216 Reply Memorandum,, CORRECTION OF DOCKET # 217 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 216 ) (Lee, Bill) (Filed on 6/10/2008) (Entered: 06/10/2008)
235 ORDER by Magistrate Judge Elizabeth D. Laporte denying 232 Motion to Strike (edllc2, COURT STAFF) (Filed on 6/11/2008) (Entered: 06/11/2008)
236 Combined Reply Brief Filed by Defendant Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 6/23/2008) (Entered: 06/23/2008)
237 Declaration of Kimon Manolius in Support of re 236 Combined Reply Briefs (with Exhibit A) Filed by Defendant Metropolitan Transportation Commission. (Attachments: #(1) Exhibit B and C, #(2) Exhibit D thru I). (Related document(s)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 28 of 47

06/23/2008 06/23/2008
06/23/2008
07/11/2008 07/11/2008 07/11/2008
07/11/2008
07/11/2008 07/14/2008
07/16/2008 07/21/2008 07/24/2008 07/24/2008 07/29/2008 07/30/2008

236 ). (Manolius, Kimon) (Filed on 6/23/2008) (Entered: 06/23/2008)
238 RESPONSE in Support Defendant's Response To Docket No. 230 In Support of Motion For Summary Judgment filed byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 6/23/2008) (Entered: 06/23/2008)
239 RESPONSE in Support Defendant's Reply In Support of Motion For Order To Exclude Expert Testimony and Evidence By Richard Berk and Thomas A. Rubin filed byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 6/23/2008) (Entered: 06/23/2008)
240 OBJECTIONS to and Motion to Strike Evidence Submitted by Plaintiffs in Support of Their Combined Reply and Opposition by Metropolitan Transportation Commission. (Attachments: # 1 Objections to And Motion to Strike Part 2, # 2 Objections to And Motion to Strike Part 3, # 3 Objections to And Motion to Strike Part 4)(Manolius, Kimon) (Filed on 6/23/2008) (Entered: 06/23/2008)
241 Letter from Bill Lann Lee to Court Requesting Leave to File Responses to Objections to Evidence. (Lee, Bill) (Filed on 7/11/2008) (Entered: 07/11/2008)
242 RESPONSE to re 240 Objection, to Evidence and Motion to Strike by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Lee, Bill) (Filed on 7/11/2008) (Entered: 07/11/2008)
243 Declaration of Candice Elder in Support of 242 Response ( Non Motion ) to Objections to Evidence and Motion to Strike filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 242 ) (Lee, Bill) (Filed on 7/11/2008) (Entered: 07/11/2008)
244 Declaration of Richard Marcantonio in Support of 242 Response ( Non Motion ) to Objections to Evidence and Motion to Strike filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 242 ) (Lee, Bill) (Filed on 7/11/2008) (Entered: 07/11/2008)
245 Letter from Bill Lann Lee Correcting Defendant's Position. (Lee, Bill) (Filed on 7/11/2008) (Entered: 07/11/2008)
246 Proposed Order Granting Defendant Metropolitan Transportation Commission's Motion to Exclude Expert Testimony and Evidence by Richard Berk and Thomas A. Rubin [Pursuant to Fed.R.Evid. 702, 703, 705] by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 7/14/2008) (Entered: 07/14/2008)
247 NOTICE of Appearance by Sacha Sinclair Crittenden (Crittenden, Sacha) (Filed on 7/16/2008) (Entered: 07/16/2008)
248 Response re 242 Response ( Non Motion ) Defendant's Reply to Plaintiffs' Response to Objections to Evidence byMetropolitan Transportation Commission. (Veit, Julia) (Filed on 7/21/2008) (Entered: 07/21/2008)
249 Minute Entry: Hearing held on 7/24/2008 before Elizabeth D. Laporte re Cross−motions for Summary Judgment 177 179 195 . (Court Reporter Sahar McVickar) (lmh, COURT STAFF) (Date Filed: 7/24/2008) (Entered: 07/25/2008)
Set/Reset Hearings: Further Case Management Conference set for 8/19/2008 11:00 AM. (lmh, COURT STAFF) (Entered: 08/08/2008)
250 Letter from Plaintiffs and Defendant notifying court of filing of requested chart. (Lee, Bill) (Filed on 7/29/2008) (Entered: 07/29/2008)
251 Transcript of Proceedings held on 7/24/08, before Judge Elizabeth Laporte. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626−6060. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/27/2008. (McVickar,

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 29 of 47

07/30/2008
08/01/2008 08/01/2008 08/01/2008 08/13/2008 08/18/2008 08/19/2008 08/21/2008
08/22/2008 08/25/2008 08/25/2008 08/25/2008

Sahar) (Filed on 7/30/2008) (Entered: 07/30/2008)
252 Transcript of Proceedings held on 07/24/08, before Judge Elizabeth Laporte. Court Reporter/Transcriber Sahar McVickar, Telephone number (415) 626−6060. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 10/27/2008. (McVickar, Sahar) (Filed on 7/30/2008) (Entered: 07/30/2008)
253 NOTICE by Metropolitan Transportation Commission JOINT POST−HEARING SUBMISSION RE MOTIONS FOR SUMMARY ADJUDICATION AND SUMMARY JUDGMENT (Manolius, Kimon) (Filed on 8/1/2008) (Entered: 08/01/2008)
254 EXHIBITS re 253 Notice (Other) POST−HEARING SUBMISSION EXHIBITS (Exhibits A through G) filed byMetropolitan Transportation Commission. (Related document(s) 253 ) (Manolius, Kimon) (Filed on 8/1/2008) (Entered: 08/01/2008)
255 EXHIBITS re 254 Exhibits POST−HEARING SUBMISSION EXHIBITS (Exhibits G through M) filed byMetropolitan Transportation Commission. (Related document(s) 254 ) (Manolius, Kimon) (Filed on 8/1/2008) (Entered: 08/01/2008)
256 JOINT CASE MANAGEMENT STATEMENT filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 8/13/2008) (Entered: 08/13/2008)
257 JOINT CASE MANAGEMENT STATEMENT (Supplemental) filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 8/18/2008) (Entered: 08/18/2008)
259 Minute Entry: Further Case Management Conference held on 8/19/2008 before Elizabeth D. Laporte. Further Case Management Conference set for 9/9/2008 03:00 PM. (FTR 11:08am−11:26am) (lmh, COURT STAFF) (Date Filed: 8/19/2008) (Entered: 08/21/2008)
258 ORDER DENYING PLAINTIFFS' MOTION FOR SUMMARY ADJUDICATION; GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTIONS FOR SUMMARY JUDGMENT by Magistrate Judge Elizabeth D. Laporte denying 177 Motion for Summary Judgment; denying 179 Motion for Summary Judgment; granting in part and denying in part 195 Motion for Summary Judgment (edllc2, COURT STAFF) (Filed on 8/21/2008) (Entered: 08/21/2008)
260 STIPULATION and [Proposed] Order re Pretrial Filings by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 8/22/2008) (Entered: 08/22/2008)
261 Pretrial Conference Statement by Metropolitan Transportation Commission JOINT PRE−TRIAL STATEMENT. (Veit, Julia) (Filed on 8/25/2008) (Entered: 08/25/2008)
262 EXHIBITS re 261 Pretrial Conference Statement Plaintiffs' Exhibit A1 to Joint Pre−Trial Statement filed byMetropolitan Transportation Commission. (Related document(s) 261 ) (Veit, Julia) (Filed on 8/25/2008) (Entered: 08/25/2008)
263 EXHIBITS re 261 Pretrial Conference Statement Plaintiff's Exhibit A2 filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit 1, Part 1, # 2 Exhibit 1, Part 2, # 3 Exhibit 1, Part 3, # 4 Exhibit 1, Part 4, # 5 Exhibit 1, Part 5, # 6 Exhibit 2(A)(1), # 7 Exhibit 2(A)(2), # 8 Exhibit 2(B)(1), # 9 Exhibit 2(C)(1), # 10 Exhibit 3(A)(1), # 11 Exhibit 3(A)(2), # 12 Exhibit 3(B)(1), # 13 Exhibit 3(C)(1), # 14 Exhibit 4(A)(1), # 15 Exhibit 4(B)(1), # 16 Exhibit 5(A)(1), # 17 Exhibit 5(A)(2), # 18 Exhibit 5(B)(1), # 19 Exhibit 5(C)(1), # 20 Exhibit 6(A)(1), # 21 Exhibit 6(A)(2), # 22 Errata 6(B)(1), # 23 Exhibit 6(C)(1))(Related document(s)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 30 of 47

08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008
08/25/2008 08/25/2008 08/25/2008

261 ) (Veit, Julia) (Filed on 8/25/2008) (Entered: 08/25/2008)
264 EXHIBITS re 261 Pretrial Conference Statement Plaintiff's Exhibit B1 filed byMetropolitan Transportation Commission. (Related document(s) 261 ) (Veit, Julia) (Filed on 8/25/2008) (Entered: 08/25/2008)
265 EXHIBITS re 261 Pretrial Conference Statement Plaintiffs' Exhibit B2 filed byMetropolitan Transportation Commission. (Related document(s) 261 ) (Veit, Julia) (Filed on 8/25/2008) (Entered: 08/25/2008)
266 EXHIBITS re 261 Pretrial Conference Statement Plaintiffs' Exhibit B3 filed byMetropolitan Transportation Commission. (Related document(s) 261 ) (Veit, Julia) (Filed on 8/25/2008) (Entered: 08/25/2008)
267 EXHIBITS re 261 Pretrial Conference Statement Defendant's Exhibit B4 filed byMetropolitan Transportation Commission. (Related document(s) 261 ) (Veit, Julia) (Filed on 8/25/2008) (Entered: 08/25/2008)
268 EXHIBITS re 261 Pretrial Conference Statement Defendant's Exhibit B5 filed byMetropolitan Transportation Commission. (Related document(s) 261 ) (Veit, Julia) (Filed on 8/25/2008) (Entered: 08/25/2008)
269 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE NO. 1 TO EXCLUDE ALL WITNESSES FROM THE COURTROOM UNTIL CALLED TO TESTIFY filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
270 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 TO EXCLUDE ALL HEARSAY STATEMENTS; MEMORANDUM OF POINTS AND AUTHORITIES filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
271 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 TO EXCLUDE TESTIMONY BY WITNESSES WITHOUT PERSONAL KNOWLEDGE; MEMORANDUM OF POINTS AND AUTHORITIES filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
272 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF PARTIES SETTLEMENT DISCUSSIONS; MEMORANDUM OF POINTS AND AUTHORITIES filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
273 Declaration of Kimon Manolius in Support of 272 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF PARTIES SETTLEMENT DISCUSSIONS; MEMORANDUM OF POINTS AND AUTHORITIES filed byMetropolitan Transportation Commission. (Related document(s) 272 ) (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
274 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 5 TO EXCLUDE TIME−BARRED EVIDENCE; MEMORANDUM OF POINTS AND AUTHORITIES filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
275 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE LEGALLY IMPOSSIBLE FUNDING OPTIONS; MEMORANDUM OF POINTS AND AUTHORITIES filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
276 Declaration of Kimon Manolius in Support of 275 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE LEGALLY IMPOSSIBLE FUNDING OPTIONS; MEMORANDUM OF POINTS AND AUTHORITIES filed byMetropolitan Transportation Commission. (Related document(s) 275 ) (Webster, Warren) (Filed

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 31 of 47

08/25/2008
08/25/2008
08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/25/2008 08/26/2008 08/28/2008 08/28/2008 08/28/2008 08/29/2008

on 8/25/2008) (Entered: 08/25/2008)
277 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE OF INTENTIONAL DISCRIMINATION UNCONNECTED TO CHALLENGED AGENCY DECISION; MEMORANDUM OF POINTS AND AUTHORITIES filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
278 Declaration of Kimon Manolius in Support of 277 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE OF INTENTIONAL DISCRIMINATION UNCONNECTED TO CHALLENGED AGENCY DECISION; MEMORANDUM OF POINTS AND AUTHORITIES filed byMetropolitan Transportation Commission. (Related document(s) 277 ) (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
279 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO BIFURCATE ISSUE OF PLAINTIFFS STANDING TO SUE MTC; MEMORANDUM OF POINTS AND AUTHORITIES filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
280 MOTION in Limine DEFENDANTS NOTICE OF MOTION MOTION IN LIMINE NO. 9 TO EXCLUDE EVIDENCE OF CLASSES NOT IDENTIFIED IN SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
281 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 10 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT RICHARD BERK filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
282 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 11 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT THOMAS A. RUBIN filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
283 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 12 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT THOMAS W. SANCHEZ filed by Metropolitan Transportation Commission. (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
284 NOTICE by Metropolitan Transportation Commission DEFENDANTS NOTICE OF MOTION AND REQUEST FOR JUDICIAL NOTICE; MEMORANDUM OF POINTS AND AUTHORITIES (Webster, Warren) (Filed on 8/25/2008) (Entered: 08/25/2008)
285 STIPULATION AND ORDER RE PRETRIAL FILINGS AS MODIFIED re 260 . Pretrial Conference rescheduled to 9/19/2008 02:00 PM . Signed by Judge Elizabeth D. Laporte on 8/26/08. (lmh, COURT STAFF) (Filed on 8/26/2008) (Entered: 08/26/2008)
286 NOTICE of Appearance by Jessica Valenzuela Santamaria Notice of Appearance for Plaintiffs (Atty. M. Brigham) (Santamaria, Jessica) (Filed on 8/28/2008) (Entered: 08/28/2008)
287 NOTICE of Appearance by Jessica Valenzuela Santamaria Notice of Appearance for Plaintiffs (Atty. B. Kimura) (Santamaria, Jessica) (Filed on 8/28/2008) (Entered: 08/28/2008)
288 NOTICE of Appearance by Jessica Valenzuela Santamaria Notice of Appearance for Plaintiffs (Atty. N. Marathe) (Santamaria, Jessica) (Filed on 8/28/2008) (Entered: 08/28/2008)
289 Witness List by Metropolitan Transportation Commission DEFENDANT METROPOLITAN TRANSPORTATION COMMISSIONS WITNESS LIST.

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 32 of 47

08/29/2008
08/29/2008 08/29/2008 08/29/2008 09/05/2008 09/05/2008 09/05/2008 09/05/2008 09/05/2008 09/05/2008 09/05/2008 09/08/2008 09/09/2008 09/09/2008

(Manolius, Kimon) (Filed on 8/29/2008) (Entered: 08/29/2008)
290 Exhibit List DEFENDANT METROPOLITAN TRANSPORTATION COMMISSIONS EXHIBIT LIST by Metropolitan Transportation Commission.. (Attachments: # 1 Exhibit Part 1 of 4 (MTC's Exhibit List), # 2 Exhibit Part 2 of 4 (MTC's Exhibit List), # 3 Exhibit Part 3 of 4 (MTC's Exhibit List), # 4 Exhibit Part 4 of 4 (MTC's Exhibit List))(Manolius, Kimon) (Filed on 8/29/2008) (Entered: 08/29/2008)
291 Proposed Findings of Fact by Sylvia Darensburg JOINT PROPOSED FINDINGS OF FACT &CONCLUSIONS OF LAW. (Santamaria, Jessica) (Filed on 8/29/2008) (Entered: 08/29/2008)
292 Exhibit List PLAINTIFFS' TRIAL EXHIBIT LIST by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez.. (Santamaria, Jessica) (Filed on 8/29/2008) (Entered: 08/29/2008)
293 Witness List by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez PLAINTIFFS' WITNESS LIST. (Santamaria, Jessica) (Filed on 8/29/2008) (Entered: 08/29/2008)
294 Proposed Findings of Fact by Vivian Hain, Amalgamated Transit Union, Local 192, Sylvia Darensburg (Proposed Findings of Fact and Conclusions of Law). (Lee, Bill) (Filed on 9/5/2008) (Entered: 09/05/2008)
295 NOTICE by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez MANUAL FILING NOTIFICATION RE JOINT APPENDIX (Santamaria, Jessica) (Filed on 9/5/2008) (Entered: 09/05/2008)
296 TRIAL BRIEF by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Appendix A, # 2 Appendix B, # 3 Appendix C, # 4 Appendix D, # 5 Appendix E)(Santamaria, Jessica) (Filed on 9/5/2008) (Entered: 09/05/2008)
297 TRANSCRIPT DESIGNATION − PLAINTIFFS' DEPOSITION DESIGNATIONS by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/5/2008) (Entered: 09/05/2008)
298 TRANSCRIPT DESIGNATION DEFENDANTS DEPOSITION DESIGNATION by Metropolitan Transportation Commission for proceedings held on October 1, 2008 before Judge Elizabeth D. Laporte.. (Manolius, Kimon) (Filed on 9/5/2008) (Entered: 09/05/2008)
299 TRIAL BRIEF DEFENDANT METROPOLITAN TRANSPORTATION COMMISSIONS TRIAL BRIEF (PHASE ONE) by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 9/5/2008) (Entered: 09/05/2008)
300 Proposed Findings of Fact by Metropolitan Transportation Commission DEFENDANT MTCS PROPOSED SEPARATE FINDINGS OF FACT AND CONCLUSIONS OF LAW. (Manolius, Kimon) (Filed on 9/5/2008) (Entered: 09/05/2008)
301 CASE MANAGEMENT STATEMENT JOINT CASE MANAGEMENT STATEMENT filed by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 9/8/2008) (Entered: 09/08/2008)
302 OBJECTIONS to Plaintiffs' Witness List by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 9/9/2008) (Entered: 09/09/2008)
303 Memorandum in Opposition re 269 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE NO. 1 TO EXCLUDE ALL WITNESSES FROM THE COURTROOM UNTIL CALLED TO TESTIFY filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment,

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 33 of 47

09/09/2008 09/09/2008 09/09/2008 09/09/2008 09/09/2008 09/09/2008 09/09/2008 09/09/2008 09/09/2008

Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
304 Memorandum in Opposition re 270 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 TO EXCLUDE ALL HEARSAY STATEMENTS; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
305 Memorandum in Opposition re 271 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 TO EXCLUDE TESTIMONY BY WITNESSES WITHOUT PERSONAL KNOWLEDGE; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
306 RESPONSE in Support re 272 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF PARTIES SETTLEMENT DISCUSSIONS; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
307 Memorandum in Opposition re 274 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 5 TO EXCLUDE TIME−BARRED EVIDENCE; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
308 Memorandum in Opposition re 275 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE LEGALLY IMPOSSIBLE FUNDING OPTIONS; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
309 Memorandum in Opposition re 277 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE OF INTENTIONAL DISCRIMINATION UNCONNECTED TO CHALLENGED AGENCY DECISION; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
310 Memorandum in Opposition re 279 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO BIFURCATE ISSUE OF PLAINTIFFS STANDING TO SUE MTC; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
311 Memorandum in Opposition re 280 MOTION in Limine DEFENDANTS NOTICE OF MOTION MOTION IN LIMINE NO. 9 TO EXCLUDE EVIDENCE OF CLASSES NOT IDENTIFIED IN SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
312 Memorandum in Opposition re 281 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 10 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT RICHARD BERK filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 34 of 47

09/09/2008 09/09/2008 09/09/2008 09/09/2008
09/09/2008

313 Memorandum in Opposition re 282 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 11 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT THOMAS A. RUBIN filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
314 Memorandum in Opposition re 283 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 12 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT THOMAS W. SANCHEZ filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
315 TRANSCRIPT DESIGNATION MTC'S DEPOSITION COUNTERDESIGNATIONS AND OBJECTIONS TO PLAINTIFFS' DEPOSITION DESIGNATIONS by Metropolitan Transportation Commission for proceedings held on October 1, 2008 before Judge Hon. Elizabeth D. Laporte.. (Attachments: # 1 Part 1 of 2, # 2 Part 2 of 2)(Manolius, Kimon) (Filed on 9/9/2008) (Entered: 09/09/2008)
316 DECLARATION of Jessica Valenzuela Santamaria in Opposition to 280 MOTION in Limine DEFENDANTS NOTICE OF MOTION MOTION IN LIMINE NO. 9 TO EXCLUDE EVIDENCE OF CLASSES NOT IDENTIFIED IN SECOND AMENDED COMPLAINT; MEMORANDUM OF POINTS AND AUTHORITIES, 275 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 6 TO EXCLUDE EVIDENCE LEGALLY IMPOSSIBLE FUNDING OPTIONS; MEMORANDUM OF POINTS AND AUTHORITIES, 281 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 10 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT RICHARD BERK, 277 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 7 TO EXCLUDE EVIDENCE OF INTENTIONAL DISCRIMINATION UNCONNECTED TO CHALLENGED AGENCY DECISION; MEMORANDUM OF POINTS AND AUTHORITIES, 271 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 3 TO EXCLUDE TESTIMONY BY WITNESSES WITHOUT PERSONAL KNOWLEDGE; MEMORANDUM OF POINTS AND AUTHORITIES, 269 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION IN LIMINE NO. 1 TO EXCLUDE ALL WITNESSES FROM THE COURTROOM UNTIL CALLED TO TESTIFY, 272 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 4 TO EXCLUDE EVIDENCE OF PARTIES SETTLEMENT DISCUSSIONS; MEMORANDUM OF POINTS AND AUTHORITIES, 274 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 5 TO EXCLUDE TIME−BARRED EVIDENCE; MEMORANDUM OF POINTS AND AUTHORITIES, 282 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 11 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT THOMAS A. RUBIN, 279 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 8 TO BIFURCATE ISSUE OF PLAINTIFFS STANDING TO SUE MTC; MEMORANDUM OF POINTS AND AUTHORITIES, 270 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 2 TO EXCLUDE ALL HEARSAY STATEMENTS; MEMORANDUM OF POINTS AND AUTHORITIES filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M)(Related document(s) 280 , 275 , 281 , 277 , 271 , 269 , 272 , 274 , 282 , 279 , 270 ) (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
317 DECLARATION of Richard Marcantonio in Opposition to 283 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 12 TO EXCLUDE THE REPORTS AND TESTIMONY OF PLAINTIFFS EXPERT THOMAS W. SANCHEZ filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia

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09/09/2008 09/09/2008 09/09/2008 09/09/2008 09/09/2008 09/11/2008 09/11/2008 09/11/2008 09/11/2008 09/15/2008
09/15/2008 09/19/2008

Martinez. (Attachments: # 1 Exhibit A)(Related document(s) 283 ) (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
318 OBJECTIONS to re 298 Transcript Designation − PLAINTIFFS' LIST OF COUNTER DEPOSITION DESIGNATIONS &OBJECTIONS by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
319 OBJECTIONS to re 261 Pretrial Conference Statement − PLAINTIFFS' OBJECTIONS TO DEFENDANT MTC's WRITTEN DISCOVERY DESIGNATIONS &EXHIBITS by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
320 OBJECTIONS to re 289 Witness List − PLAINTIFFS' OBJECTIONS TO DEFENDANT'S NON−EXPERT WITNESSES by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
321 Memorandum in Opposition TO DEFENDANT'S REQUEST FOR JUDICIAL NOTICE filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/9/2008) (Entered: 09/09/2008)
328 Minute Entry: Further Case Management Conference held on 9/9/2008 before Elizabeth D. Laporte. (FTR 3:33pm − 3:57pm) (lmh, COURT STAFF) (Date Filed: 9/9/2008) (Entered: 09/15/2008)
322 Exhibit List MTCS AMENDED EXHIBIT LIST by Metropolitan Transportation Commission.. (Attachments: # 1 Part 1 of 4, # 2 Part 2 of 4, # 3 Part 3 of 4, # 4 Part 4 of 4)(Manolius, Kimon) (Filed on 9/11/2008) (Entered: 09/11/2008)
323 OBJECTIONS to PLAINTIFFS TRIAL EXHIBIT LIST by Metropolitan Transportation Commission. (Attachments: # 1 Part 1 of 3, # 2 Part 2 of 3, # 3 Part 3 of 3)(Manolius, Kimon) (Filed on 9/11/2008) (Entered: 09/11/2008)
324 OBJECTIONS to re 322 Exhibit List, 290 Exhibit List, PLAINTIFFS' OBJECTIONS TO DEFENDANT'S TRIAL EXHIBIT LIST by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Part 2 of 4, # 2 Part 3 or 4, # 3 Part 4 of 4)(Santamaria, Jessica) (Filed on 9/11/2008) (Entered: 09/11/2008)
325 AMENDED DOCUMENT by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. PLAINTIFFS' AMENDED TRIAL EXHIBIT LIST. (Santamaria, Jessica) (Filed on 9/11/2008) (Entered: 09/11/2008)
326 ORDER DENYING DEFENDANT'S MOTION TO EXCLUDE EXPERT TESTIMONY; OVERRULING DEFENDANT'S OBJECTIONS TO EVIDENCE SUBMITTED BY PLAINTIFFS AND REGARDING DEFENDANT'S OBJECTIONS TO PLAINTIFFS' OTHER EVIDENCE. Signed by Magistrate Judge Elizabeth D.Laporte on September 15, 2008. (edllc2, COURT STAFF) (Filed on 9/15/2008) (Entered: 09/15/2008)
327 Declaration of Kimon Manolius in Support of 274 MOTION in Limine DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NO. 5 TO EXCLUDE TIME−BARRED EVIDENCE; MEMORANDUM OF POINTS AND AUTHORITIES filed byMetropolitan Transportation Commission. (Related document(s) 274 ) (Manolius, Kimon) (Filed on 9/15/2008) (Entered: 09/15/2008)
329 NOTICE by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez MANUAL FILING NOTIFICATION RE JOINT APPENDIX OF RESOLUTIONS (Santamaria, Jessica) (Filed on 9/19/2008) (Entered: 09/19/2008)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 36 of 47

09/19/2008 09/19/2008 09/19/2008
09/22/2008 09/22/2008
09/23/2008 09/25/2008 09/26/2008 09/29/2008 09/29/2008 09/29/2008 09/29/2008 09/30/2008 10/01/2008

330 ORDER FOLLOWING PRETRIAL CONFERENCE. Signed by Magistrate Judge Elizabeth D. Laporte on September 19, 2008. (edllc2, COURT STAFF) (Filed on 9/19/2008) (Entered: 09/19/2008)
334 Minute Entry: Pretrial Conference held on 9/19/2008 before Magistrate Judge Laporte on 9/19/2008. (Court Reporter Debbie Pas) (lmh, COURT STAFF) (Date Filed: 9/19/2008) (Entered: 09/23/2008)
RECEIVED LODGED "Joint Appendix of Resolutions" (one black binder) re 329 Notice of Manual Filing Notification re Joint Appendix of Resolutions Filed by Plaintiffs Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (tn, COURT STAFF) (Entered: 09/23/2008)
331 AMENDED DOCUMENT by Metropolitan Transportation Commission. Amendment to 323 Objection DEFENDANT MTCS AMENDED OBJECTIONS TO PLAINTIFFS TRIAL EXHIBIT LIST. (Manolius, Kimon) (Filed on 9/22/2008) (Entered: 09/22/2008)
332 OBJECTIONS to re 322 Exhibit List PLAINTIFFS' AMENDED OBJECTIONS TO DEFENDANT'S AMENDED TRIAL EXHIBIT LIST by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/22/2008) (Entered: 09/22/2008)
333 NOTICE of Appearance by Laura P. Juran (Juran, Laura) (Filed on 9/23/2008) (Entered: 09/23/2008)
335 Exhibit List Plaintiffs' Supplemental &Second Amended Trial Exhibit List by Sylvia Darensburg.. (Santamaria, Jessica) (Filed on 9/25/2008) (Entered: 09/25/2008)
336 Proposed Order ALLOWING EQUIPMENT IN COURTROOM FOR TRIAL by Vivian Hain, Sylvia Darensburg. (Santamaria, Jessica) (Filed on 9/26/2008) (Entered: 09/26/2008)
337 ORDER re 336 Proposed Order filed by Vivian Hain, Sylvia Darensburg. Signed by Magistrate Judge Elizabeth D. Laporte on September 29, 2008. (edllc2, COURT STAFF) (Filed on 9/29/2008) (Entered: 09/29/2008)
338 Proposed Order ALLOWING EQUIPMENT IN COURTROOM FOR TRIAL by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 9/29/2008) (Entered: 09/29/2008)
339 ORDER re 338 Proposed Order filed by Metropolitan Transportation Commission. Signed by Magistrate Judge Elizabeth D. Laporte on September 29, 2008. (edllc2, COURT STAFF) (Filed on 9/29/2008) (Entered: 09/29/2008)
340 Appendix JOINT GLOSSARY OF TERMS filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Santamaria, Jessica) (Filed on 9/29/2008) (Entered: 09/29/2008)
341 TRANSCRIPT DESIGNATION Joint Supplemental Deposition Designations and Counter−Designations of Tina Spencer by Metropolitan Transportation Commission for proceedings held on 10/01/2008 before Judge Elizabeth D. Laporte.. (Manolius, Kimon) (Filed on 9/30/2008) (Entered: 09/30/2008)
342 Transcript of Proceedings held on 10−1−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/29/2008. (Pas, Debra) (Filed on 10/1/2008) (Entered: 10/01/2008)

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10/01/2008 10/01/2008 10/02/2008
10/02/2008 10/03/2008 10/06/2008
10/06/2008 10/07/2008
10/07/2008 10/08/2008

343 Exhibit List MTC's Second Amended and Supplemental Exhibit List by Metropolitan Transportation Commission.. (Attachments: # 1 Part 1 of 4, # 2 Part 2 of 4, # 3 Part 3 of 4, # 4 Part 4 of 4)(Manolius, Kimon) (Filed on 10/1/2008) (Entered: 10/01/2008)
344 Minute Entry: Bench Trial began on 10/1/2008 before Elizabeth D. Laporte. Witnesses called: Yvonne Williams, H.E. Christian Peeples. Bench Trial continued to 10/2/2008 08:45 AM. (Court Reporter Debra Pas/Joan Columbini) (lmh, COURT STAFF) (Date Filed: 10/1/2008) (Entered: 10/02/2008)
345 Transcript of Proceedings held on 10−2−2008, before Judge Elizabeth D. Laporte, Magistrate. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 12/29/2008. (Pas, Debra) (Filed on 10/2/2008) (Entered: 10/02/2008)
349 Minute Entry: Further Bench Trial held on 10/2/2008 before Elizabeth D. Laporte. Witnesses called: H.E. Christian Peeples, Theresa McMillan. Bench Trial continued to 10/6/2008 08:45 AM. (Court Reporter Debra Pas/Joan Columbini) (lmh, COURT STAFF) (Date Filed: 10/2/2008) (Entered: 10/07/2008)
346 Proposed Findings of Fact by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg (SUPPLEMENTAL JOINT PROPOSED FINDINGS OF FACT). (Hasselman, Margaret) (Filed on 10/3/2008) (Entered: 10/03/2008)
347 Transcript of Proceedings held on 10−6−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/2/2009. (Pas, Debra) (Filed on 10/6/2008) (Entered: 10/06/2008)
350 Minute Entry: Further Case Management Conference held on 10/6/2008 before Elizabeth D. Laporte. Bench Trial continued to 10/7/2008 08:45 AM. (Court Reporter Debra Pas) (lmh, COURT STAFF) (Date Filed: 10/6/2008) (Entered: 10/07/2008)
348 *** FILED IN ERROR. DOCUMENT LOCKED. PLEASE SEE DOCKET # 351 . *** Transcript of Proceedings held on 10−7−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/2/2009. (Pas, Debra) (Filed on 10/7/2008) Modified on 10/9/2008 (ewn, COURT STAFF). (Entered: 10/07/2008)
358 Minute Entry: Bench Trial held on 10/7/2008 before Elizabeth D. Laporte. Further Bench Trial set for 10/8/2008 08:45 AM. (Court Reporter Debra Pas/Joan Columbini) (lmh, COURT STAFF) (Date Filed: 10/7/2008) (Entered: 10/16/2008)
351 CORRECTION OF DOCKET # 348 Transcript of Proceedings held on 10−7−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 38 of 47

10/08/2008
10/08/2008 10/08/2008 10/09/2008 10/09/2008
10/14/2008 10/15/2008
10/15/2008 10/16/2008

deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/5/2009. (Pas, Debra) (Filed on 10/8/2008) (Entered: 10/08/2008)
352 Transcript of Proceedings held on 10−8−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/5/2009. (Pas, Debra) (Filed on 10/8/2008) (Entered: 10/08/2008)
353 Proposed Findings of Fact by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg (SECOND SUPPLEMENTAL JOINT PROPOSED FINDINGS OF FACT). (Hasselman, Margaret) (Filed on 10/8/2008) (Entered: 10/08/2008)
359 Minute Entry: Bench Trial held on 10/9/2008 before Elizabeth D. Laporte. Further Bench Trial set for 10/9/2008 08:45 AM. (Court Reporter Debra Pas/Joan Columbini) (lmh, COURT STAFF) (Date Filed: 10/8/2008) (Entered: 10/16/2008)
354 Minute Entry: Bench Trial held on 10/9/2008 before Judge Elizabeth D. Laporte (Date Filed: 10/9/2008). Bench Trial continued to 10/14/2008 08:45 AM. (Court Reporter Debra Pas.) (tdm, COURT STAFF) (Date Filed: 10/9/2008) (Entered: 10/09/2008)
355 Transcript of Proceedings held on October 9, 2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/5/2009. (Pas, Debra) (Filed on 10/9/2008) Modified on 11/21/2008 (ewn, COURT STAFF). (Entered: 10/09/2008)
356 Exhibit List MTCs Third Amended and Supplemental Exhibit List by Metropolitan Transportation Commission.. (Attachments: # 1 Part 1 of 4, # 2 Part 2 of 4, # 3 Part 3 of 4, # 4 Part 4 of 4)(Manolius, Kimon) (Filed on 10/14/2008) (Entered: 10/14/2008)
357 Transcript of Proceedings held on 10−15−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/12/2009. (Pas, Debra) (Filed on 10/15/2008) (Entered: 10/15/2008)
360 Minute Entry: Bench Trial held on 10/15/2008 before Elizabeth D. Laporte. Bench Trial continued to 10/16/2008 08:45 AM. (Court Reporter Debra Pas/Joan Columbini) (lmh, COURT STAFF) (Date Filed: 10/15/2008) (Entered: 10/16/2008)
361 Transcript of Proceedings held on 10−16−08, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from

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10/16/2008 10/21/2008 10/21/2008 10/21/2008 10/21/2008
10/22/2008 10/22/2008
10/24/2008 10/24/2008 10/24/2008 10/24/2008 10/24/2008

date of this filing. Release of Transcript Restriction set for 1/12/2009. (Pas, Debra) (Filed on 10/16/2008) (Entered: 10/16/2008)
362 Minute Entry: Bench Trial held on 10/16/2008 before Elizabeth D. Laporte. Bench Trial continued to 10/21/2008 08:45 AM. (Court Reporter Debra Pas/Joan Columbini) (lmh, COURT STAFF) (Date Filed: 10/16/2008) (Entered: 10/20/2008)
363 Minute Entry: Bench Trial held on 10/21/2008 before Elizabeth D. Laporte. Bench Trial continued to 10/22/2008 08:45 AM. (Court Reporter Debra Pas/Joan Columbini) (lmh, COURT STAFF) (Date Filed: 10/21/2008) (Entered: 10/21/2008)
364 Proposed Findings of Fact by Metropolitan Transportation Commission Third Supplemental Joint Proposed Findings of Fact. (Manolius, Kimon) (Filed on 10/21/2008) (Entered: 10/21/2008)
365 AFFIDAVIT re 364 Proposed Findings of Fact Declaration of Paul Oversier for Purposes of Trial by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 10/21/2008) (Entered: 10/21/2008)
366 Transcript of Proceedings held on 10−21−08, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/16/2009. (Pas, Debra) (Filed on 10/21/2008) (Entered: 10/21/2008)
367 Minute Entry: Bench Trial completed on 10/22/2008 before Judge Elizabeth D. Laporte (Date Filed: 10/22/2008). (Court Reporter Debra Pas) (ls, COURT STAFF) (Date Filed: 10/22/2008) (Entered: 10/22/2008)
368 Transcript of Proceedings held on 10−22−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 1/20/2009. (Pas, Debra) (Filed on 10/22/2008) (Entered: 10/22/2008)
369 STIPULATION Relating to Rebuttal Testimony of Thomas W. Sanchez by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Lee, Bill) (Filed on 10/24/2008) (Entered: 10/24/2008)
370 STIPULATION Regarding Stefan Boedeker by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 10/24/2008) (Entered: 10/24/2008)
371 STIPULATION Regarding Ridership, Revenue Vehicle Miles, and Revenue Vehicle Hours by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit A−C)(Hasselman, Margaret) (Filed on 10/24/2008) (Entered: 10/24/2008)
372 Exhibit List Joint Trial Exhibit List Part 1 by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Metropolitan Transportation Commission, Sylvia Darensburg, Virginia Martinez.. (Attachments: # 1 Part 2 of Joint Trial Exhibit List)(Marathe, Neha) (Filed on 10/24/2008) (Entered: 10/24/2008)
373 OBJECTIONS to Defendant MTC's 3rd Amended and Supplemental Exhibit List Part 1 by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Part

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 40 of 47

10/24/2008
10/28/2008 10/30/2008
10/31/2008
11/03/2008 11/03/2008
11/03/2008 11/03/2008
11/03/2008 11/03/2008 11/03/2008 11/12/2008 11/17/2008 11/19/2008 11/21/2008 12/03/2008 12/15/2008

2, # 2 Part 3)(Marathe, Neha) (Filed on 10/24/2008) (Entered: 10/24/2008)
374 Exhibit List Plaintiffs' Second Supplemental Trial Exhibit List by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez.. (Attachments: # 1 Attachment A)(Marathe, Neha) (Filed on 10/24/2008) (Entered: 10/24/2008)
375 Exhibit List MTC's REQUEST TO ADMIT EXHIBITS TO WHICH PLAINTIFFS HAVE OBJECTED by Metropolitan Transportation Commission.. (Manolius, Kimon) (Filed on 10/28/2008) (Entered: 10/28/2008)
376 Proposed Findings of Fact by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez Plaintiffs' Amended Proposed Findings of Fact and Conclusions of Law. (Marathe, Neha) (Filed on 10/30/2008) (Entered: 10/30/2008)
377 TRIAL BRIEF Plaintiffs' Post−Trial Brief by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Attachments: # 1 Exhibit Attachments A−L)(Marathe, Neha) (Filed on 10/31/2008) (Entered: 10/31/2008)
378 Defendant MTC's Post−Evidentiary Phase Brief by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 11/3/2008) (Entered: 11/03/2008)
379 Proposed Findings of Fact by Metropolitan Transportation Commission Defendant's Proposed Findings of Fact (Post Trial) Part 1 of 3. (Attachments: # 1 Part 2 of 3, # 2 Part 3 of 3)(Manolius, Kimon) (Filed on 11/3/2008) (Entered: 11/03/2008)
380 Letter from Kimon Manolius dated 10/31/08 re MTC's Post Evidentiary Phase Brief and Proposed Findings of Fact (Post Trial). (Manolius, Kimon) (Filed on 11/3/2008) (Entered: 11/03/2008)
381 Proposed Findings of Fact by Metropolitan Transportation Commission Defendant's Amended Proposed Findings of Fact (Post Trial) Part 1 of 3. (Attachments: # 1 Part 2 of 3, # 2 Part 3 of 3)(Manolius, Kimon) (Filed on 11/3/2008) (Entered: 11/03/2008)
382 Letter from Julia H. Veit dated 10/31/08 re MTC's Amended Proposed Findings of Fact (Post Trial). (Manolius, Kimon) (Filed on 11/3/2008) (Entered: 11/03/2008)
383 STIPULATION Joint Stipulation Regarding Supplemental Exhibit by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 11/3/2008) (Entered: 11/03/2008)
384 OBJECTIONS to Plaintiffs' Second Supplemental Trial Exhibit List by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 11/3/2008) (Entered: 11/03/2008)
385 CLERKS NOTICE SETTING Hearing re Closing Arguments for 12/9/2008 01:00 PM before Judge Laporte. (lmh, COURT STAFF) (Filed on 11/12/2008) (Entered: 11/12/2008)
386 NOTICE of Change In Counsel by Jessica Valenzuela Santamaria (Grant P. Fondo only) (Santamaria, Jessica) (Filed on 11/17/2008) (Entered: 11/17/2008)
EXHIBIT LOCATION: Bin #29 − (joint appendix of resolutions). (tn, COURT STAFF) (Entered: 11/19/2008)
387 NOTICE by Vivian Hain, Communities for a Better Environment, Sylvia Darensburg Name Change of Counsel (Crittenden, Sacha) (Filed on 11/21/2008) (Entered: 11/21/2008)
388 CLERKS NOTICE CONTINUING Hearing re Closing Arguments to 12/16/2008 at 1:00 PM before Judge Laporte in Courtroom E, 15th Floor, 450 Golden Gate Avenue. (lmh, COURT STAFF) (Filed on 12/3/2008) (Entered: 12/03/2008)
389 OBJECTIONS to Evidence Submitted in Plaintiffs' Post−Trial Brief by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 41 of 47

12/16/2008 03/12/2009
03/27/2009 03/27/2009 04/06/2009 04/06/2009
04/06/2009 04/07/2009 04/07/2009 04/08/2009 04/09/2009 04/10/2009 04/10/2009 04/10/2009

12/15/2008) (Entered: 12/15/2008)
390 STIPULATION Joint Stipulation Regarding Exhibits Referenced At Trial by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 12/16/2008) (Entered: 12/16/2008)
391 Transcript of Court Trial, Volume 11, held on 12−16−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 6/8/2009. (Pas, Debra) (Filed on 3/12/2009) (Entered: 03/12/2009)
392 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Signed by Magistrate Judge Elizabeth D. Laporte on March 27, 2009. (edllc2, COURT STAFF) (Filed on 3/27/2009) (Entered: 03/27/2009)
393 JUDGMENT. Signed by Magistrate Judge Elizabeth D. Laporte on March 27, 2009. (edllc2, COURT STAFF) (Filed on 3/27/2009) (Entered: 03/27/2009)
394 MOTION for Extension of Time to File Parties' Motions for Attorneys' Fees and Costs filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 4/6/2009) (Entered: 04/06/2009)
395 Declaration of Bill Lann Lee in Support of 394 MOTION for Extension of Time to File Parties' Motions for Attorneys' Fees and Costs filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 394 ) (Hasselman, Margaret) (Filed on 4/6/2009) (Entered: 04/06/2009)
396 Proposed Order re 394 MOTION for Extension of Time to File Parties' Motions for Attorneys' Fees and Costs by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 4/6/2009) (Entered: 04/06/2009)
397 STIPULATION AND PROPOSED ORDER REGARDING EXTENSION OF TIME FOR DEFENDANT METROPOLITAN TRANSPORTATION COMMISSION TO FILE ATTORNEYS' FEES by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 4/7/2009) (Entered: 04/07/2009)
398 ORDER EXTENDING TIME to File Motions for Attorneys' Fees to 5/1/2009.Signed by Judge Elizabeth D. Laporte on 4/7/09. (lmh, COURT STAFF) (Filed on 4/7/2009) (Entered: 04/07/2009)
399 ORDER RE: Stipulation Regarding Extention of Time 397 . Signed by Judge Elizabeth D. Laporte on 4/8/09. (lmh, COURT STAFF) (Filed on 4/8/2009) (Entered: 04/08/2009)
400 Memorandum in Opposition Defendant's Opposition to Plaintiffs' Motion to Enlarge Time to Submit Motions for Attorneys' Fees and Costs filed byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 4/9/2009) (Entered: 04/09/2009)
401 BILL OF COSTS by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 4/10/2009) (Entered: 04/10/2009)
402 Declaration of Kimon Manolius in Support of 401 Bill of Costs filed byMetropolitan Transportation Commission. (Related document(s) 401 ) (Manolius, Kimon) (Filed on 4/10/2009) (Entered: 04/10/2009)
403 EXHIBITS re 402 Declaration in Support Exhibits A thru C to Declaration of Kimon Manolius in Support of Defendant's Bill of Costs filed byMetropolitan Transportation Commission. (Related document(s) 402 ) (Manolius, Kimon) (Filed on 4/10/2009) (Entered: 04/10/2009)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 42 of 47

04/10/2009 04/14/2009 04/23/2009 04/23/2009
04/23/2009 04/23/2009 04/24/2009 04/24/2009 04/24/2009 05/01/2009 05/01/2009 05/01/2009 05/01/2009

404 EXHIBITS re 402 Declaration in Support Exhibits D thru G to Declaration of Kimon Manolius in Support of Defendant's Bill of Costs filed byMetropolitan Transportation Commission. (Related document(s) 402 ) (Manolius, Kimon) (Filed on 4/10/2009) (Entered: 04/10/2009)
405 ORDER by Magistrate Judge Elizabeth D. Laporte denying 394 Motion for Extension of Time to File (edllc2, COURT STAFF) (Filed on 4/14/2009) (Entered: 04/14/2009)
406 CERTIFICATE OF SERVICE by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg for NOTICE OF APPEAL, CIVIL APPEALS DOCKETING STATEMENT and REPRESENTATION STATEMENT FOR APPEAL (Hasselman, Margaret) (Filed on 4/23/2009) (Entered: 04/23/2009)
409 NOTICE OF APPEAL as to the Court's re 392 Findings of Fact &Conclusions of Law, re 258 Order on Motion for Summary Judgment &re 393 Judgment Filedby Plaintiffs Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg &Virginia Martinez − [Filing Fee:$455.00, Receipt Number 34611031364]. (tn, COURT STAFF) (Filed on 4/23/2009) (Entered: 04/24/2009)
410 REPRESENTATION Statement for Appeal re 409 Notice of Appeal Filed by Plaintiffs Sylvia Darensburg, Vivian Hain, Amalgamated Transit Union, Local 192 &Communities for a Better Environment. (tn, COURT STAFF) (Filed on 4/23/2009) (Entered: 04/24/2009)
CIVIL APPEALS Docketing Statement re 409 Notice of Appeal Submitted by Plaintiffs Sylvia Darensburg, Vivian Hain, Amalgamated Transit Union, Local 192 &Communities for a Better Environment. (tn, COURT STAFF) (Entered: 04/24/2009)
407 OBJECTIONS to re 401 Bill of Costs by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Hasselman, Margaret) (Filed on 4/24/2009) (Entered: 04/24/2009)
408 Declaration of Margaret Hasselman in Support of 407 Objection to Defendant's Bill of Costs −− Local Rule 54−2 filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Attachments: # 1 Exhibit A−G)(Related document(s) 407 ) (Hasselman, Margaret) (Filed on 4/24/2009) (Entered: 04/24/2009)
411 TRANSMISSION OF Notice of Appeal &Docket Sheet to United States Court of Appeals for the Ninth Circuit Submitted by Plaintiffs Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg &Virginia Martinez re 409 Notice of Appeal. (tn, COURT STAFF) (Filed on 4/24/2009) (tn, COURT STAFF). (Entered: 04/24/2009)
412 NOTICE OF MOTION &MOTION &MEMORANDUM of Points &Authorities in Support of MOTION for Attorneys' Fees Filed by Metropolitan Transportation Commission. Motion Hearing set for 6/16/2009 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Manolius, Kimon) (Filed on 5/1/2009) (Entered: 05/01/2009)
413 Declaration of Kimon Manolius in Support of 412 MOTION for Attorney Fees filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C (Part 1 of 2), # 4 Exhibit C (Part 2 of 2), # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F)(Related document(s) 412 ) (Manolius, Kimon) (Filed on 5/1/2009) (Entered: 05/01/2009)
414 Declaration of Julia H. Veit in Support of 412 MOTION for Attorney Fees filed byMetropolitan Transportation Commission. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Related document(s) 412 ) (Manolius, Kimon) (Filed on 5/1/2009) (Entered: 05/01/2009)
415 Declaration of James A. Quadra in Support of 412 MOTION for Attorney Fees filed byMetropolitan Transportation Commission. (Related document(s) 412 ) (Manolius, Kimon) (Filed on 5/1/2009) (Entered: 05/01/2009)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 43 of 47

05/07/2009 05/08/2009 05/19/2009 05/19/2009 05/19/2009 05/20/2009
05/26/2009 05/26/2009 05/26/2009
05/26/2009 05/27/2009 05/28/2009 05/29/2009
06/10/2009

416 United States Court of Appeals for the Ninth Circuit CASE NUMBER 09−15878 for re 409 Notice of Appeal filed by Amalgamated Transit Union, Local 192, Virginia Martinez, Communities for a Better Environment, Vivian Hain &Sylvia Darensburg. (tn, COURT STAFF) (Filed on 5/7/2009) (Entered: 05/08/2009)
DEFENDANTS' TRIAL EXHIBIT LOCATION: On Middle Floor − [includes 13 boxes of misc. binders]. (tn, COURT STAFF) (Entered: 05/11/2009)
417 Memorandum in Opposition re 412 MOTION for Attorney Fees filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Lee, Bill) (Filed on 5/19/2009) (Entered: 05/19/2009)
418 Declaration of Deborah Johnson in Support of 417 Memorandum in Opposition to Defendant's Motion for Attorney's Fees filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 417 ) (Lee, Bill) (Filed on 5/19/2009) (Entered: 05/19/2009)
419 Declaration of Bill Gallegos in Support of 417 Memorandum in Opposition to Defendant's Motion for Attorney's Fees filed byVivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 417 ) (Lee, Bill) (Filed on 5/19/2009) (Entered: 05/19/2009)
420 Letter from Impact Fund, American Civil Liberties Union of Northern California, Disability Rights Advocates, Mexican American Legal Defense and Educational Fund, Sierra Club, Earthjustice, Center on Race, Poverty and the Environment, Stanford Environmental Law Clinic, and the Lawyers' Committee for Civil Rights of the San Francisco Bay Area. (Seligman, Brad) (Filed on 5/20/2009) (Entered: 05/20/2009)
421 Transcript Designation and Ordering Form filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Lee, Bill) (Filed on 5/26/2009) (Entered: 05/26/2009)
422 Reply Memorandum re 412 MOTION for Attorney Fees filed byMetropolitan Transportation Commission. (Manolius, Kimon) (Filed on 5/26/2009) (Entered: 05/26/2009)
423 Declaration of Kimon Manolius in Support of 412 MOTION for Attorney Fees Supplemental Declaration of Kimon Manolius in Support of Defendant MTCs Motion for Attorneys Fees filed byMetropolitan Transportation Commission. (Related document(s) 412 ) (Manolius, Kimon) (Filed on 5/26/2009) (Entered: 05/26/2009)
424 OBJECTIONS to MTCs Objections to Declarations of Bill Gallegos and Deborah Johnson by Metropolitan Transportation Commission. (Manolius, Kimon) (Filed on 5/26/2009) (Entered: 05/26/2009)
425 ORDER by Magistrate Judge Elizabeth D. Laporte denying 412 Motion for Attorney Fees (edllc2, COURT STAFF) (Filed on 5/27/2009) (Entered: 05/27/2009)
426 TRANSCRIPT DESIGNATION &ORDERING FORM for Proceedings Held on 8/23/2005 − C/R: Peppina Thompson &9/16/2008 − C/R: Debra Pas before Mag. Judge Elizabeth D. Laporte Filed by Plaintiffs. (tn, COURT STAFF) (Filed on 5/28/2009) (Entered: 05/29/2009)
427 AMENDED TRANSCRIPT DESIGNATION &ORDERING FORM re 421 : Amended Transcript Designation and Ordering Form filed by Vivian Hain, Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg. (Related document(s) 421 ) (Lee, Bill) (Filed on 5/29/2009) (Entered: 05/29/2009)
428 RESPONSE to re 424 Objection to Declarations of Bill Gallegos and Deborah Johnson by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Hasselman, Margaret) (Filed on 6/10/2009) (Entered: 06/10/2009)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 44 of 47

06/10/2009 06/10/2009 06/10/2009 06/16/2009 06/22/2009
06/23/2009 06/23/2009 06/23/2009 06/23/2009 06/23/2009 06/23/2009

429 Declaration of Margaret Hasselman in Support of 428 Response ( Non Motion ) to Objection to Declarations of Bill Gallegos and Deborah Johnson filed byAmalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Related document(s) 428 ) (Hasselman, Margaret) (Filed on 6/10/2009) (Entered: 06/10/2009)
430 Declaration of Bill Gallegos (Amended) in Support of 417 Memorandum in Opposition, 428 Response ( Non Motion ) filed byAmalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Related document(s) 417 , 428 ) (Hasselman, Margaret) (Filed on 6/10/2009) (Entered: 06/10/2009)
431 Declaration of Deborah Johnson (Amended) in Support of 417 Memorandum in Opposition, 428 Response ( Non Motion ) filed byAmalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Related document(s) 417 , 428 ) (Hasselman, Margaret) (Filed on 6/10/2009) (Entered: 06/10/2009)
432 Costs Taxed in amount of $ 45,747.08 against Plaintiffs. (cgk, COURT STAFF) (Filed on 6/16/2009) (Entered: 06/16/2009)
433 Transcript of Proceedings held on August 23, 2005, before Judge ELIZABETH D. LAPORTE. Court Reporter/Transcriber Peppina Thompson, Telephone number (415) 994−0043. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/17/2009. (djc, COURT STAFF) (Filed on 6/22/2009) (Entered: 06/22/2009)
434 MOTION for Review of Taxation of Costs re 432 Costs Taxed filed by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. Motion Hearing set for 7/28/2009 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Hasselman, Margaret) (Filed on 6/23/2009) (Entered: 06/23/2009)
435 Declaration of Margaret Hasselman in Support of 434 MOTION for Review of Taxation of Costs re 432 Costs Taxed MOTION for Review of Taxation of Costs re 432 Costs Taxed filed byAmalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Related document(s) 434 ) (Hasselman, Margaret) (Filed on 6/23/2009) (Entered: 06/23/2009)
436 Proposed Order re 434 MOTION for Review of Taxation of Costs re 432 Costs Taxed MOTION for Review of Taxation of Costs re 432 Costs Taxed by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Hasselman, Margaret) (Filed on 6/23/2009) (Entered: 06/23/2009)
437 MOTION to Seal Document Declarations of Vivian Hain and Sylvia Darensburg in support of Motion for Review of Taxation of Costs filed by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Hasselman, Margaret) (Filed on 6/23/2009) (Entered: 06/23/2009)
438 Declaration of Margaret Hasselman in Support of 437 MOTION to Seal Document Declarations of Vivian Hain and Sylvia Darensburg in support of Motion for Review of Taxation of Costs filed byAmalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Related document(s) 437 ) (Hasselman, Margaret) (Filed on 6/23/2009) (Entered: 06/23/2009)
439 Proposed Order re 437 MOTION to Seal Document Declarations of Vivian Hain and Sylvia Darensburg in support of Motion for Review of Taxation of Costs by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Hasselman, Margaret) (Filed on 6/23/2009) (Entered: 06/23/2009)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 45 of 47

06/23/2009
06/23/2009 06/23/2009 06/23/2009
06/24/2009 06/24/2009 06/26/2009 06/26/2009 06/26/2009 06/26/2009

440 Transcript of Proceedings held on 9−19−2008, before Judge Elizabeth D. Laporte. Court Reporter/Transcriber Debra L. Pas, CSR, Telephone number (415) 431−1477. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerks Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction.After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. Release of Transcript Restriction set for 9/18/2009. (Pas, Debra) (Filed on 6/23/2009) (Entered: 06/23/2009)
441 MOTION for Taxation of Costs MTC's Notice of Motion and Memorandum of Points and Authorities in Support of Motion to Review Clerk's Taxation of Costs filed by Metropolitan Transportation Commission. Motion Hearing set for 7/28/2009 09:00 AM in Courtroom E, 15th Floor, San Francisco. (Manolius, Kimon) (Filed on 6/23/2009) (Entered: 06/23/2009)
442 Declaration of Megan Oliver Thompson in Support of 441 MOTION for Taxation of Costs MTC's Notice of Motion and Memorandum of Points and Authorities in Support of Motion to Review Clerk's Taxation of Costs filed byMetropolitan Transportation Commission. (Related document(s) 441 ) (Manolius, Kimon) (Filed on 6/23/2009) (Entered: 06/23/2009)
RECEIVED 'SEALED' DOCUMENTS: (1) Administrative Motion to File Under Seal Declarations of Vivian Hain &Sylvia Darensburg in Support of Motion for Review of Clerk's Taxation of Costs, (2) Declaration of Sylvia Darensburg in Support of Plaintiffs' Motion for Review of Clerk's Taxation of Costs, (3) Declaration of Sylvia Darensburg in Support of Plaintiffs' Motion for Review of Clerk's Taxation of Costs, (4) Declaration of Vivian Hain in Support of Plaintiffs' Motion for Review of Clerk's Taxation of Costs, (5) Declaration of Vivian Hain in Support of Plaintiffs' Motion for Review of Clerk's Taxation of Costs, (6) Declaration of Margaret Hasselman in Support of Administraive Motion to File Under Seal Declarations of Vivian Hain &Sylvia Darensburg &(7) [Proposed] Order Granting Administrative Motion to File Under Seal Declarations of Vivian Hain &Sylvia Darensburg in Support of Motion for Review of Clerk's Taxation of Costs Submitted by Plaintiffs Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain &Virginia Martinez. (tn, COURT STAFF) (Entered: 06/24/2009)
443 Proposed Order re 441 MOTION for Taxation of Costs MTC's Notice of Motion and Memorandum of Points and Authorities in Support of Motion to Review Clerk's Taxation of Costs by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 6/24/2009) (Entered: 06/24/2009)
444 MOTION Administrative Motion Seeking Clarification of Order Denying Defendant's Motion for Attorneys' Fees/Extension of Time to File Appeal filed by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 6/24/2009) (Entered: 06/24/2009)
445 ORDER RE: DEFENDANT'S ADMINISTRATIVE REQUEST SEEKING CLARIFICATION OF ORDER DENYING DEFENDANT'S MOTION FOR ATTORNEY'S FEES by Magistrate Judge Elizabeth D. Laporte terminating 444 Motion (edllc2, COURT STAFF) (Filed on 6/26/2009) (Entered: 06/26/2009)
446 ORDER GRANTING Administrative Motion to File Under Seal 437 Declarations of Vivian Hain and Sylvia Darensburg. Signed by Judge Elizabeth D. Laporte. (lmh, COURT STAFF) (Filed on 6/26/2009) (Entered: 06/26/2009)
447 [FILED UNDER SEAL]...DECLARATION of Sylvia Darensburg in Support of re 441 MOTION for Taxation of Costs MTC's Notice of Motion and Memorandum of Points and Authorities in Support of Motion to Review Clerk's Taxation of Costs Filed by Plaintiffs Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Virginia Martinez. (Related document(s) 441 ). (tn, COURT STAFF) (Filed on 6/26/2009) (Entered: 06/26/2009)
448 [FILED UNDER SEAL]...DECLARATION of Vivian Hain in Support of re 441 MOTION for Taxation of Costs MTC's Notice of Motion and Memorandum of Points and Authorities in Support of Motion to Review Clerk's Taxation of Costs

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 46 of 47

07/07/2009 07/07/2009
07/07/2009 07/07/2009 07/07/2009 07/07/2009 07/07/2009 07/07/2009 07/10/2009
07/14/2009 07/14/2009
08/04/2009 08/14/2009

Ffiled by Plaintiffs Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain, Virginia Martinez. (Related document(s) 441 ). (tn, COURT STAFF) (Filed on 6/26/2009) (Entered: 06/26/2009)
449 CLERKS NOTICE RESETTING Plaintiffs' and Defendant's Motions for Review of Clerk's Taxation of Costs 434 441 . Hearing reset for 02:00 PM on 7/28/2009 before Judge Laporte in Courtroom E, 15th Floor, San Francisco. (lmh, COURT STAFF) (Filed on 7/7/2009) (Entered: 07/07/2009)
450 Memorandum in Opposition re 441 MOTION for Taxation of Costs MTC's Notice of Motion and Memorandum of Points and Authorities in Support of Motion to Review Clerk's Taxation of Costs filed byAmalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain, Virginia Martinez. (Lye, Linda) (Filed on 7/7/2009) (Entered: 07/07/2009)
451 Proposed Order re 450 Memorandum in Opposition, by Amalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain, Virginia Martinez. (Lye, Linda) (Filed on 7/7/2009) (Entered: 07/07/2009)
452 OPINION ON DEFENDANT'S MOTION FOR ATTORNEYS' FEES. Signed by Magistrate Judge Elizabeth D. Laporte on July 7, 2009. (edllc2, COURT STAFF) (Filed on 7/7/2009) (Entered: 07/07/2009)
453 ORDER RE: DEFENDANT'S OBJECTIONS TO EVIDENCE. Signed by Magistrate Judge Elizabeth D. Laporte on July 7, 2009. (edllc2, COURT STAFF) (Filed on 7/7/2009) (Entered: 07/07/2009)
454 Memorandum in Opposition to re 441 Plaintiffs' Motion for Review of Clerk's Taxation of Costs filed by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 7/7/2009) (Entered: 07/07/2009)
455 Declaration of Francis Chin in Support of 454 Memorandum in Opposition to Plaintiffs' Motion for Review of Clerk's Taxation of Costs filed byMetropolitan Transportation Commission. (Related document(s) 454 ) (Veit, Julia) (Filed on 7/7/2009) (Entered: 07/07/2009)
456 OBJECTIONS to Amended Declarations of Bill Gallegos and Deborah Johnson by Metropolitan Transportation Commission. (Veit, Julia) (Filed on 7/7/2009) (Entered: 07/07/2009)
457 ORDER REGARDING BRIEFING AND VACATING HEARING ON PLAINTIFFS' MOTION FOR REVIEW OF TAXATION OF COSTS AND DEFENDANT'S MOTION TO REVIEW CLERK'S TAXATION OF COSTS. Signed by Magistrate Judge Elizabeth D. Laporte on July 10, 2009. (edllc2, COURT STAFF) (Filed on 7/10/2009) (Entered: 07/10/2009)
458 Reply to Opposition re 441 MOTION for Taxation of Costs MTC's Notice of Motion and Memorandum of Points and Authorities in Support of Motion to Review Clerk's Taxation of Costs filed byMetropolitan Transportation Commission. (Veit, Julia) (Filed on 7/14/2009) (Entered: 07/14/2009)
459 Reply Memorandum re 434 MOTION for Review of Taxation of Costs re 432 Costs Taxed MOTION for Review of Taxation of Costs re 432 Costs Taxed filed byAmalgamated Transit Union, Local 192, Communities for a Better Environment, Sylvia Darensburg, Vivian Hain. (Hasselman, Margaret) (Filed on 7/14/2009) (Entered: 07/14/2009)
460 ORDER by Magistrate Judge Elizabeth D. Laporte granting 434 Motion ; finding as moot 441 Motion for Taxation of Costs. (edllc2, COURT STAFF) (Filed on 8/4/2009) (Entered: 08/04/2009)
461 CERTIFICATE OF RECORD forwarded to United States Court of Appeals for the Ninth Circuit re 409 Notice of Appeal. (tn, COURT STAFF) (Filed on 8/14/2009) (Entered: 08/14/2009)

Case: 3:05-cv-01597-EDL As of: 03/26/2011 08:39 PM PDT 47 of 47

03/16/2010
08/26/2010 09/24/2010 03/04/2011 03/14/2011 03/17/2011

462 United States Court of Appeals for the Ninth Circuit ORDER as to re 409 Notice of Appeal filed by Amalgamated Transit Union, Local 192, Virginia Martinez, Communities for a Better Environment, Vivian Hain, Sylvia Darensburg. (tn, COURT STAFF) (Filed on 3/16/2010) (Entered: 03/16/2010)
463 NOTICE of Change of Address by Bill Lann Lee (Lee, Bill) (Filed on 8/26/2010) (Entered: 08/26/2010)
464 Certified &Transmitted Record on Appeal to United States Court of Appeals for the Ninth Circuit re 409 Notice of Appeal. (tn, COURT STAFF) (Filed on 9/24/2010) (Entered: 09/24/2010)
465 United States Court of Appeals for the Ninth Circuit OPINION as to re 409 Notice of Appeal. (tn, COURT STAFF) (Filed on 3/4/2011) (Entered: 03/04/2011)
466 United States Court of Appeals for the Ninth Circuit BILL OF COSTS re 409 Notice of Appeal. (tnS) (Filed on 3/14/2011) (Entered: 03/16/2011)
467 United States Court of Appeals for the Ninth Circuit MANDATE as to re 409 Notice of Appeal filed by Amalgamated Transit Union, Local 192, Virginia Martinez, Communities for a Better Environment, Vivian Hain &Sylvia Darensburg. (tnS) (Filed on 3/17/2011) (Entered: 03/17/2011)