Cohen v. Massachusetts Bay Transp. Authority, 81-1211

• Decision Date: 21 April 1981
• Docket Number: No. 81-1211,81-1211
• Citation: 647 F.2d 209
• Parties: David B. COHEN et al., Plaintiffs, Appellants, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY et al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 209

647 F.2d 209

David B. COHEN et al., Plaintiffs, Appellants, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY et al Defendants, Appellees.

No. 81-1211.

United States Court of Appeals First Circuit.

Argued April 8, 1981.

Decided April 21, 1981.

Peter Koff, Boston, Mass., for plaintiffs, appellants.

Joseph H. Elcock, Gen. Counsel, Boston, Mass., with whom Ronald G. Busconi, Asst. Gen. Counsel, Boston, Mass., was on brief, for defendant, appellee Massachusetts Bay Transportation Authority.

Richard J. Bacigalupo, Atty., U. S. Dept. of Transportation, Washington, D. C., with whom Trudy B. Levy, Acting Asst. Chief Counsel, U. S. Dept. of Transportation, Washington, D. C., Edward F. Harrington, U. S. Atty., and Donald R. Anderson, Asst. U. S. Atty., Boston, Mass., were on brief, for Federal defendants, appellees.

Before ALDRICH, BOWNES and BREYER, Circuit Judges.

ALDRICH, Senior Circuit Judge.

This is a representative action brought by four members of the general public, riders of the "T", the rapid transit, bus, and general transit system serving metropolitan Boston operated by the principal defendant, Massachusetts Bay Transportation Authority (MBTA), a political subdivision of the Commonwealth. ¹ Other defendants are the MBTA's Chairman, the Secretary of the United States Department of Transportation, the Administrator of the Urban Mass Transportation Administration (UMTA), and UMTA's designate Regional Director for the Boston region. The suit's initial purpose was to prevent broad service cuts announced by the MBTA (in final form on March 31, 1981) from taking effect until there had been further public hearings and consideration given to matters allegedly neglected.

The complaint was filed on March 20. Plaintiffs unsuccessfully sought a temporary restraining order and a preliminary injunction from the district court, and an order or stay from us pending appeal. As a result of these failures the cuts went into effect, commencing April 4. We expedited the appeal, and after the hearing on April 8 affirmed the denial of the injunction without opinion, but retained jurisdiction for consideration of possible further relief. We now conclude that none is warranted.

The basis of the suit is plaintiffs' claim that the MBTA failed adequately to perform its obligations under an agreement entered into with the UMTA. This, in terms, followed the provisions of section 5(i)(3), 49 U.S.C. § 1604(i)(3) of the Urban Mass Transportation Act of 1964, 49 U.S.C. § 1601 et seq., hereinafter the UMT Act or act, as a required condition for the granting of a federal Operating Assistance Grant. Funds were last received in 1980, but whether fully consumed or not does not appear. The MBTA concedes that it plans to seek further funds in 1981. We consider the agreement fully viable. Section 5(i)(3) required the MBTA to give

"assurances satisfactory to the Secretary (that it) will not substantially change any service except (A) after having held public hearings or having afforded an adequate opportunity for such hearings, after adequate public notice, (B) after having given proper consideration to views and comments expressed in such hearings, and (C) after having given consideration to the effect on energy conservation, and the economic, environmental, and social impact of the change in such fare or such service."

Regulations issued under the act, so far as pertinent, stated that the notice of the public hearings should contain "a description of the contemplated service changes." 45 Fed.Reg. 26,298, 26,301 (1980) (to be codified in 49 C.F.R. § 635.9(c)(1)).

On December 30, 1980 the MBTA directors considered the actions they must take as a result of the controlling 1981 budget announced by the MBTA Advisory Board the preceding week in an amount some 57 million dollars less than requested, and 7 million dollars less than the budget which had proved substantially insufficient for calendar year 1980. After allowance for economy measures not presently before us, the shortfall was pared down to 23 million dollars. Since it is unlawful to exceed the budget, MBTA Advisory Board v. MBTA, -- Mass. --, 1981 Mass.Adv.Sh. 403, 417 N.E.2d 7, to the point that a shutdown well before the end of this year would be inescapable without changes, or additional funds, the directors concluded, in light of the shortfall, that it was advisable to consider an early reduction of services. Thereafter, on February 13, they published extensive newspaper notices listing the services proposed to be affected, by being "discontinued," by "frequency reduction," or by elimination of service on Sundays, or during off-peak hours, or beyond stated geographical limits. ² Following this listing was an announcement that four public hearings would be held on March 16, 1981, at certain specified hours and places, and that more detailed information would be provided at the hearings.

Present at each of the March 16 hearings were MBTA representatives, one of whom, in advance of a verbatim transcription, took notes and made summaries of the general nature of the comments. These summaries were forwarded to the MBTA directors before their vote, and were part of the district court record. The vote, taken March 31, 1981, recited that the testimony adduced at the hearings had been reviewed, and that "despite the adverse effects on the public resulting in hardship and substantial inconvenience and the adverse impact upon the energy, economy, environment and social well being," the Board's legal obligation to live within its budget mandated implementation of the cuts.

As the transcripts are not before us we cannot finally evaluate plaintiffs' generalized assertion that the summaries were not adequate or meaningful, but an extraordinary amount of substance was omitted if they are materially incomplete. Most of the comments, as summarized, focused on the hardships imposed by the cuts and, somewhat less so, on who was to blame. Such suggestions as appear, range from that of a state senator, echoed by a Union representative, that the MBTA "carry on the service substantially as it exists and face the issue of exhaustion of funds when it arises," to undetailed admonitions to "cut the fat" and "live within the budget."

The most specific proposals came from the MBTA's former director, Robert Kiley, whose suggestion that all MBTA employees take an 8% to 10% cut in pay was recorded in the summaries, along with the predictable Union opposition. Kiley also offered, by affidavit, his opinion

"that the MBTA could reduce its remaining 1981 expenditures by approximately $7,250,000 without reducing service simply by reducing the following costs in four areas: (1) absenteeism ($3,000,000); (2) replacement of employees lost through attrition ($750,000); (3) overtime ($2,000,000); and (4) the pool of workers covering absent employees, the so-called 'cover list' ($1,500,000)."

Opinions may differ as to the tractability of the problems identified, but the proposed 7 million dollar saving still falls considerably short of the 23 million dollar shortfall. In short, if there is a "quick fix" for the MBTA's problems, it does not appear on this record.

In an extensive opinion the district court found that plaintiffs had not met the familiar requirements for the granting of a preliminary injunction, namely, that they would suffer irreparable injury if the injunction were not granted; that the injury to them outweighs the anticipated injury to the MBTA should the injunction issue; that they have a reasonable likelihood of success, and that granting the injunction would not be against the public interest. See Planned Parenthood League of Massachusetts v. Bellotti, 1 Cir. 1981, 641 F.2d 1006, 1009.

The court concentrated its attention on the likelihood of success, but added that the issuance of an injunction "will do great harm to the defendant MBTA." We follow the same course, although our reasons for doubting success are not all the same as those of the district court.

Plaintiffs posited their right to sue primarily on the ground that this was implicit in the terms of section 5(i)(3), the regulations thereunder, and the MBTA's acceptance of the grant agreement. Their other three grounds were fallback positions. Since we agree with the first, we need go no further. ³ Plaintiffs' right to sue follows almost directly from our decision in Local Division No. 714, Amalgamated Transit Union, AFL-CIO v. Greater Portland Transit District, 1 Cir., 1978, 589 F.2d 1. Defendants seek to distinguish that case chiefly by arguing that a member of the riding public is not "one of the class for whose especial benefit the statute was enacted," 589 F.2d at 14, quoting Cort v. Ash, 1975, 422 U.S. 66, 78, 95 S.Ct. 2080, 2087, 45 L.Ed.2d 26. Granted, in the present action the riding public comprises thousands of potential plaintiffs, as opposed to the single union in Greater Portland. ⁴ We do not, however, read the "especial benefit" prong of the Cort test as embodying a numerical inquiry, but only as requiring that the plaintiff and his class be the intended, primary beneficiaries. It cannot be gainsaid that the purpose of the requirement of a hearing before fare or substantial service changes is to benefit the consuming public by promoting informed decision-making. The fact that the benefitted class is a large one does not mean that there is none, or that plaintiffs are outside it. Once this point is made, this case is indistinguishable from Greater Portland. We see no need to deal with defendants' further objections, such as the fact that other sections of the act, e. g., sections 1604(m), 1606, 1612 and 1615, are directed to more limited classes.

At the same time that we construe the act as giving legally enforceable rights to the public, we must interpret those rights so as to give the statute practical effect. The sheer number of concerned users must necessarily dilute individual interests. The hearing and...