                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

LABOR/COMMUNITY STRATEGY              
CENTER; BUS RIDERS UNION;
SOUTHERN CHRISTIAN LEADERSHIP
CONFERENCE OF GREATER LOS
ANGELES COUNTY; KOREAN
IMMIGRANT WORKERS ADVOCATES;               No. 06-56866
MARIA GUARDADO; RICARDO
ZELADA; NOEMI ZELADA,                       D.C. No.
                                          CV-94-05936-TJH
             Plaintiffs-Appellants,
                                             OPINION
               v.
LOS ANGELES COUNTY
METROPOLITAN TRANSPORTATION
AUTHORITY; ROGER SNOBLE,
            Defendants-Appellees.
                                      
       Appeal from the United States District Court
          for the Central District of California
        Terry J. Hatter, District Judge, Presiding

                 Argued and Submitted
           May 12, 2008—Pasadena, California

                    Filed May 5, 2009

   Before: Mary M. Schroeder, Barry G. Silverman, and
            Marsha S. Berzon, Circuit Judges.

               Opinion by Judge Silverman;
                Dissent by Judge Berzon




                           5205
            LABOR/COMMUNITY v. L.A. COUNTY MTA             5209




                         COUNSEL

Karen M. Lockwood (argued), Howrey LLP, Washington,
DC, Ethan B. Andelman, Howrey LLP, San Francisco, Cali-
fornia, Katherine M. Basile, Howrey LLP, East Palo Alto,
California, Richard A. Marcantonio, Angelica K. Jongco,
Public Advocates, Inc., San Francisco, California, for the
plaintiffs-appellants.

Caroline H. Mankey (argued), Patricia L. Glaser, James S.
Schreier, Christensen, Glaser, Fink, Jacobs, Weil, & Shapiro,
LLP, Los Angeles, California, Raymond G. Fortner, Jr.,
County Counsel, Charles M. Safer, Assistant County Counsel,
Office of the Los Angeles County Counsel, Los Angeles, Cal-
ifornia, for the defendants-appellees.


                          OPINION

SILVERMAN, Circuit Judge:

  This appeal arises after fourteen years of litigation concern-
ing public transit in Los Angeles County. In 1994, the Labor/
Community Strategy Center and other Los Angeles County
community organizations and local residents, known collec-
5210           LABOR/COMMUNITY v. L.A. COUNTY MTA
ively as the “Bus Riders Union” or “BRU,” brought a civil
rights class action against the County’s Metropolitan Transit
Authority, charging the MTA with unlawfully discriminating
against “inner-city and transit dependent bus riders” in its
allocation of public transportation resources. The case did not
go to trial; rather, in 1996, the parties agreed to, and the dis-
trict court approved, a consent decree that committed MTA to
implementing “a detailed plan to improve bus service.” See
Labor/Community Strategy Ctr. v. L.A. County Metro. Trans.
Auth., 263 F.3d 1041, 1043 (9th Cir. 2001) (“Labor/
Community”). The district court’s jurisdiction over the decree
was explicitly set to expire in ten years.

   Shortly before the tenth anniversary of the decree, BRU
moved to extend the duration of the decree on the grounds
that MTA had allegedly failed to comply with the decree’s
overcrowding provisions. BRU also sought civil contempt
sanctions against MTA for MTA’s alleged failure to comply
with a 2004 remedial order. Ruling that MTA had substan-
tially complied with the decree, the district court denied
BRU’s motion seeking these remedies and allowed the decree
to expire.

   We hold today that the district court did not abuse its dis-
cretion in denying BRU’s motion to extend the decree and for
contempt sanctions. We therefore affirm the district court’s
decision in all respects.

                          I.   Background

A.     The Underlying Lawsuit

   In 1994, BRU filed a class action under several federal civil
rights statutes,1 charging MTA with violating the Fourteenth
Amendment by discriminating against low income and minor-
ity residents of Los Angeles County. The alleged discrimina-
  1
     The complaint relied upon 42 U.S.C. §§ 1981, 1983, and 2000d.
            LABOR/COMMUNITY v. L.A. COUNTY MTA                5211
tion included expending a disproportionately high share of its
resources on commuter rail services, whose primary users
were wealthy non-minorities, and a disproportionately low
share on bus services, whose main patrons were low income
and minority residents.2

   In March 1995, the district court certified a plaintiff class
of “[a]ll poor minority and other riders of MTA buses who are
denied equal opportunity to receive transportation services
because of the MTA’s operation of a discriminatory mass
transportation system.” On the eve of trial the parties submit-
ted a proposed consent decree, which the district court
approved on October 29, 1996. See Labor/Community, 263
F.3d at 1043.

B.    The Consent Decree

  The decree committed MTA to a wide array of improve-
ments in its bus services, including instituting new bus lines
to and from centers of employment, education, and health
care in the county; enhancing security on buses; improving
bus shelters; and maintaining its fares at specific levels.
BRU’s present appeal does not directly concern those aspects
of the decree.

   BRU does contest MTA’s compliance with Section II.A of
the decree, which committed MTA to “[r]educing
[o]vercrowding [b]y [a]dding [n]ew [s]ervice.” The decree did
not set out a specific number of buses or hours of service the
MTA needed to add to achieve appropriate reductions in over-
crowding. Instead, the decree set forth specific “load factor
targets,” to be met by specific dates, and provided MTA with
“discretion in determining how the targets w[ould] be met.”
A “load factor” is “a numerical representation of the number
of people standing [and sitting] on a bus in relation to the
  2
  The allegations made in the underlying complaint are discussed in
more detail at Labor/Community, 263 F.3d at 1043.
5212        LABOR/COMMUNITY v. L.A. COUNTY MTA
number of seats.” Labor/Community, 263 F.3d at 1044 n.1.
For example, a forty-seat bus which contained forty-eight pas-
sengers would have a load factor of 1.2. Under the terms of
the decree, MTA was required to reduce the maximum load
factor for each relevant bus line to 1.35 by December 31,
1997, 1.25 by June 30, 2000, and 1.2 by June 30, 2002.

   In addition to these substantive provisions, the decree
included a number of procedural mechanisms designed to
assure implementation and enforcement. Four are relevant to
this appeal.

   First, the decree created a Joint Working Group, composed
of representatives from BRU and MTA. The purpose of the
Working Group was to “foster cooperation in the implementa-
tion” of the decree and to resolve disputes between the par-
ties.

  Second, Section V of the decree established the position of
“Special Master,” “to facilitate the resolution of disputes aris-
ing under any provision of this Consent Decree” that could
not be settled by the Working Group. The parties agreed that
Donald T. Bliss would serve as the initial Special Master.

  Third, Section VI, entitled “Modification of the Consent
Decree,” set forth the conditions under which the decree may
be modified. Under Section VI, a party seeking modification
must show “that a significant change in circumstances war-
rants revision of the Consent Decree, and that the proposed
revision or revisions are suitably tailored to the changed cir-
cumstances.”

   Finally, Section VIII provided that the “District Court shall
retain jurisdiction over this litigation for ten years from the
date of approval of this Consent Decree in order to monitor
compliance with this Consent Decree.” The court approved
the decree on October 29, 1996, so the court’s obligatory
            LABOR/COMMUNITY v. L.A. COUNTY MTA              5213
retention of jurisdiction was set to terminate on October 29,
2006. Section VIII stated further that:

     At the end of seven years, MTA may file a motion
     with the District Court to terminate the Consent
     Decree and the Court shall grant such motion if
     MTA shows to the Court’s satisfaction that it has
     substantially complied with the Consent Decree and
     that it has in place a service plan that will enable
     continued adherence to the principles and objective
     of the Consent Decree during the five years subse-
     quent to the termination of this Consent Decree.

C.   The 1999 and 2004 Orders

   In September 1998, the members of the Working Group
agreed that on seventy-five out of the seventy-nine bus lines
monitored, MTA had not met the initial load factor target of
1.35 by the December 31, 1997 deadline. See Labor/
Community, 263 F.3d at 1046. As the parties’ representatives
could not agree on a remedial plan to address this failure, and
also to ensure that MTA would meet the second target of 1.25
by June 30, 2000, the Special Master issued an order on
March 6, 1999 mandating a plan which, as later revised,
required, among other things, that MTA acquire 379 addi-
tional buses. Id. at 1047.

   MTA sought review of the 1999 Order, questioning both
the Special Master’s authority to impose it and the validity of
the factual findings and interpretation of the decree on which
it was premised. Id. The district court upheld the Special Mas-
ter’s findings regarding the agency’s noncompliance with the
1997 1.35 load factor target as not clearly erroneous, and
affirmed the 1999 Order as to the 248 buses that MTA was
required to purchase to meet the 1997 target. At the same
time, the district court declared it “too early to determine
whether the MTA is incapable of meeting” the 2000 load fac-
tor target, so it vacated the Special Master’s Order with regard
5214         LABOR/COMMUNITY v. L.A. COUNTY MTA
to the remaining additional buses and directed the Special
Master to reevaluate the need for those buses once more up-
to-date data were available. We affirmed the district court’s
order in Labor/Community. 263 F.3d at 1051.

   On January 12, 2004, the Special Master promulgated
another order addressing measures necessary for MTA to
achieve compliance with the load factor targets. The “Final
Order on Remedial Service Plan to Meet 1.25 and 1.2 Load
Factor Target Requirements” specified that “[i]n order to
achieve compliance with the Consent Decree and to meet and
maintain the 1.2 [load factor target],” MTA was required to
provide the additional buses and service hours called for by
the Working Group. The Order permitted MTA to meet some
of the additional requirements through changes to existing
services and more efficient scheduling of its existing fleet.
But it required MTA to purchase “the vehicular equivalent of
145 new 40-seat expansion buses” and to provide “an addi-
tional 290,145 annual in-service hours.” The Final Order
stated that providing this expanded service, along with the
other improvements specified, would constitute “substantial
compliance with the load factor targets of the Consent Decree
and create a presumption that [its] expansion bus procurement
requirements . . . have been met.”

D.     The District Court’s Ruling

   In February 2006, the Special Master resigned. Although
BRU and MTA agreed on a replacement, the district court did
not appoint a new Special Master, citing the limited “amount
of time remaining before the Court is divested of jurisdiction
over the . . . Decree.” The court indicated, however, that if its
“jurisdiction is extended, it will revisit this issue.”3
  3
   BRU asserts that the district court’s failure to appoint a new Special
Master violates the decree. Neither BRU nor MTA timely appealed that
order, so we lack jurisdiction to review it. See 28 U.S.C. § 2107.
             LABOR/COMMUNITY v. L.A. COUNTY MTA                  5215
   After the district court declined to appoint a new Special
Master, BRU filed motions to extend the duration of the
decree and for contempt sanctions.4 The district court denied
both. It concluded that contempt sanctions were inappropriate
because BRU had failed to satisfy its burden of “establish[-
ing], by clear and convincing evidence, that MTA either
failed to substantially comply with the Final Order or failed
to take all reasonable steps to insure compliance with the
Final Order.” On the contrary, the court held, “it is clear that
MTA has substantially complied, and taken all reasonable
steps within its power to insure compliance, with the Final
Order.”

   Moreover, the district court stated, extension of the decree
was unnecessary because the “Decree did not require perfec-
tion,” and “[d]espite an increasing ridership, increasing traffic
congestion and fiscal constraints, MTA has substantially com-
plied with the Consent Decree while maintaining fares at rea-
sonable levels.” The district court concluded that the decree
“has served its purpose and will not be extended.” BRU
timely appealed.

                    II.   Standard of Review

   We review a district court’s interpretation of a consent
decree de novo, with “deference . . . based on the court’s
extensive oversight of the decree from the commencement of
the litigation to the current appeal.” Nehmer v. U.S. Dep’t of
Veterans Affairs, 494 F.3d 846, 855 (9th Cir. 2007). Both a
district court’s refusal to extend a consent decree and its
denial of a motion for contempt are reviewed for abuse of dis-
cretion. See Thompson v. U.S. Dep’t of Hous. & Urban Dev.,
404 F.3d 821, 827 (4th Cir. 2005); Hallett v. Morgan, 296
  4
   BRU originally brought motions to extend the duration of the decree
and for contempt before the Special Master in 2004. The Special Master
denied the former, without prejudice, as premature; the latter remained
pending at the time of his resignation.
5216           LABOR/COMMUNITY v. L.A. COUNTY MTA
F.3d 732, 749 (9th Cir. 2002); David C. v. Leavitt, 242 F.3d
1206, 1210 (10th Cir. 2001); Holland v. N.J. Dep’t of Corr.,
246 F.3d 267, 281 (3d Cir. 2001); Vanguards of Cleveland v.
City of Cleveland, 23 F.3d 1013, 1017 (6th Cir. 1994). A dis-
trict court abuses its discretion when “its equitable decision is
based on an error of law or a clearly erroneous factual find-
ing.” Kenney v. United States, 458 F.3d 1025, 1032 (9th Cir.
2006).

                            III.    Discussion

A.     Extension of the Decree

   [1] By its express terms, the decree provided for the district
court’s retention of jurisdiction over compliance with the
decree only until October 29, 2006, ten years after its execution.5
Because the decree contains an express expiration date for the
court’s retention of jurisdiction, any change to that date
entails a modification of the decree. See Thompson, 404 F.3d
at 824 (holding that extension of a consent decree’s termina-
tion date required modification of the decree). The first issue,
then, is whether, and under what conditions, a modification of
the decree is permitted.

   [2] To answer this question, we turn first to the decree
itself. See United States v. Asarco Inc., 430 F.3d 972, 980 (9th
   5
     BRU argues that “[t]he Decree contains no termination date” and there-
fore that the district court lacked the discretion to end its jurisdiction until
MTA complied fully with the terms of the decree. BRU did not raise this
issue before the district court and we generally will not consider an issue
raised for the first time on appeal. See Bolker v. Comm’r, 760 F.2d 1039,
1042 (9th Cir. 1985). BRU argues that the issue is one of law and can be
resolved on the record as it presently exists. We decline to exercise our
discretion to consider the issue because it may turn upon facts that MTA
did not have an opportunity to develop before the district court, namely,
extrinsic evidence of the parties’ intent. See id. (declining to address issue
not raised below because of possibility of relevant facts not developed in
the record).
            LABOR/COMMUNITY v. L.A. COUNTY MTA               5217
Cir. 2005) (noting that the meaning of “[a] consent decree,
like a contract, must be discerned within its four corners”).
According to Section VI of the decree, modification of the
decree is permitted only if the party seeking modification
establishes that (1) “a significant change in circumstances
warrants revision” and (2) “the proposed revision or revisions
are suitably tailored to the changed circumstances.” The
decree further provides that modification “may be warranted
when changed factual conditions make compliance with the
Consent Decree unworkable or substantially more onerous,
and when the changed factual conditions were unforeseen at
the time of the entry into this Consent Decree.” Perhaps not
surprisingly, these requirements are essentially identical to
those articulated by the Supreme Court in Rufo v. Inmates of
Suffolk County Jail, 502 U.S. 367, 393 (1992), and applied by
this Court in Asarco and other cases involving modifications
to consent decrees. See Asarco, 430 F.3d at 979; Hook v. Ari-
zona, 120 F.3d 921, 924 (9th Cir. 1997). So, as provided both
by the decree and by the Rufo case law, BRU’s requested
modification — i.e., extension of the district court’s jurisdic-
tion over the decree — is warranted only if the following four
conditions are met. First, BRU must establish that a “signifi-
cant change either in factual conditions or in the law”
occurred after execution of the decree. See Asarco, 430 F.3d
at 979. Second, it must demonstrate that the change was not
“anticipated at the time it entered into [the] decree.” Id. Third,
it must show that the changed factual circumstance makes
“compliance with the consent decree more onerous, unwork-
able, or detrimental to the public interest.” Id. (internal cita-
tions omitted). Finally, the proposed extension of the decree’s
termination date must be “suitably tailored to resolve the
problems created by the changed . . . conditions.” Id.

   [3] The failure of substantial compliance with the terms of
a consent decree can qualify as a significant change in cir-
cumstances that would justify the decree’s temporal exten-
sion. See Thompson, 404 F.3d at 828-29; David C., 242 F.3d
at 1212; Vanguards of Cleveland, 23 F.3d at 1019-20; Hol-
5218        LABOR/COMMUNITY v. L.A. COUNTY MTA
land, 246 F.3d at 283-84. Here, however, after overseeing this
case for more than twelve years, the district court concluded
that MTA had substantially complied with the decree. The
court ruled as follows:

    For the past ten years — the entire term of the Con-
    sent Decree — the parties have disagreed as to how
    to implement the Consent Decree, how to reach its
    objectives, and how to measure its success. In hind-
    sight, the Consent Decree was a less than perfect
    document. As a result, it is impossible to achieve
    absolute compliance. Indeed, the Special Master
    informed the parties that the Consent Decree did not
    require perfection. [Citation] However, it was possi-
    ble for MTA to substantially comply with the Con-
    sent Decree. Despite an increasing ridership,
    increasing traffic congestion and fiscal constraints,
    MTA has substantially complied with the Consent
    Decree while maintaining fares at reasonable levels.
    The Consent Decree has served its purpose and will
    be not extended. . . . As a result of the Consent
    Decree and the efforts of all of the parties, the qual-
    ity of life has improved for Los Angeles’s public
    transit dependant poor population.

   [4] The court’s finding that the decree “had served its pur-
pose” reflected a conclusion that it was no longer necessary
to involve the federal courts in the day-to-day operation of the
Los Angeles County bus system. The district court, armed
with a decade of knowledge about the case, was uniquely
positioned to determine whether there had been substantial
compliance. We accord that court’s decision deference on this
issue. See Thompson, 404 F.3d at 827 (noting deferential stan-
dard of review in institutional reform cases and stating that
“[o]ver time, the district court gains an intimate understanding
of the workings of an institution and learns what specific
changes are needed within that institution in order to achieve
the goals of the consent decree” (quoting Navarro-Ayala v.
            LABOR/COMMUNITY v. L.A. COUNTY MTA               5219
Hernandez-Colon, 951 F.2d 1325, 1338 (1st Cir. 1991))); see
also Ruiz v. Lynaugh, 811 F.2d 856, 861 (5th Cir. 1987) (dis-
cussing deference due district court in institutional reform
cases “because it is intimately involved in the often complex
process of institutional reformation” and “has the personal
knowledge, experience, and insight necessary to evaluate the
parties’ intentions, performances, and capabilities”).

  [5] Moreover, it is BRU’s burden to show otherwise. BRU
must demonstrate that MTA failed to substantially comply
with the decree in order to justify its extension. Asarco, 430
F.3d at 980 (stating that burden is on the moving party). In
arguing that MTA’s level of compliance was insubstantial,
BRU focuses exclusively on just one of the decree’s several
requirements, and uses an imperfect and misleading metric to
evaluate compliance. Further, BRU ignores the many ways in
which MTA met or exceeded its obligations.

   Although the underlying data measuring bus overcrowding
are not in dispute, the parties interpret that data in vastly dif-
ferent ways. BRU argues that the data demonstrate compli-
ance rates as low as 9% with the 1.20 load factor target during
2005 and 2006. Meanwhile, MTA argues the same data sup-
ports the conclusion that it achieved a 94-99% compliance
rate with the load factors during the same time period. In
some sense, both figures are correct.

   [6] BRU’s compliance figures are based on the standard set
forth in the decree for identifying instances of violations of
the load factor targets. According to the decree, peak load fac-
tors are to be determined “by computing the highest ratio of
total number of passengers to total number of seats achieved
during any 20 minute weekday peak period in the peak direc-
tion of travel on each bus line.” Under this metric, if a bus
line exceeds the load factor just once during a given quarter,
that line is deemed noncompliant for the entire quarter, even
if that line met the target at every other measurement that
quarter. MTA argues that this standard greatly overstates its
5220       LABOR/COMMUNITY v. L.A. COUNTY MTA
level of noncompliance, and it offers its own figures to com-
pensate for this limitation. MTA states that in 2005, it moni-
tored 123,154 20-minute time periods and found that 96.89%
of those periods experienced no load factors above the 1.20
target.

   [7] BRU correctly notes that the figures it cites are based
on the compliance standard written into the decree and
affirmed by this court in Labor/Community. 263 F.3d at 1048-
49. But that standard measures only strict compliance with the
load factor targets — not compliance with the decree overall
— and does so in an imprecise manner. That coarse-grained
metric is useful for certain types of analyses, such as deter-
mining whether there has been full and absolute compliance
(MTA concedes there has not been), but it is not particularly
helpful in measuring levels of compliance below 100%, and
it fails to accurately capture the extent to which MTA did
meet the targets during the relevant time periods.

   [8] If the question here were simply whether MTA had
achieved full compliance with the decree, we would use
BRU’s proposed standard. But the question is whether there
was substantial compliance, a less precise standard that can-
not be satisfied by reference to one particular figure, while
ignoring alternative information. Our analysis requires we do
more than simply count the number of technical deviations
from the decree. Instead, we must determine, using a holistic
view of all the available information, whether MTA’s compli-
ance with the Decree overall was substantial, notwithstanding
some minimal level of noncompliance.

  [9] In addition to using an imperfect metric to evaluate
compliance with the load factor targets, BRU also focuses
narrowly on that one requirement, as does the dissent, at the
expense of giving due weight to the various other require-
ments under the decree which MTA met, and in some cases,
exceeded. There is no question that the reduction of bus over-
crowding was an important part of the decree. But so were
            LABOR/COMMUNITY v. L.A. COUNTY MTA              5221
other requirements. As BRU’s counsel described, the decree
imposes three “essential” and “core” requirements on MTA.
These are the reduction in bus overcrowding through the load
factor targets, new service through an expedited pilot project
followed by a five-year new service plan, and a roll-back and
lowering of bus fares for at least five years. MTA exceeded
its obligations as to the bus fare and pass requirements, main-
taining fares at specified levels for years longer than it was
required to do so. And MTA has now met its obligations relat-
ing to new service requirements. To give some idea of the
extent of MTA’s efforts, since the start of the decree, it has
added 1.2 million in-service hours annually, and added over
545 buses to its peak fleet in order to expand its bus service.
BRU argues that MTA’s achievements in these areas are out-
weighed by its imperfect compliance with the load factor tar-
gets. Of course, there is no precise formula describing how
best to weigh the various obligations under the decree, and
there is no indication that the district court abused its discre-
tion in weighing them as it did.

   We note that the de minimis level of noncompliance here
is nowhere close to the near total noncompliance in cases in
which courts concluded that extensions of the consent decrees
were warranted. In Thompson, 404 F.3d at 834, there was a
“near total failure” of some defendants to comply with their
obligations. Those defendants failed to do “almost [anything]
that they were required to do under the Decree[.]” Id. at 828;
see also David C., 242 F.3d at 1212-13 (noting that defendant
was “20 percent in compliance and 80 percent in noncompli-
ance”). In contrast, aside from the imperfect compliance with
the load factor targets, MTA complied fully with its numerous
obligations under the decree.

   [10] We hold that BRU has failed to demonstrate that the
district court abused its discretion in finding that MTA had
substantially complied with the consent decree. The evidence
presented supported the district court’s finding that the imper-
fections with respect to load factor targets were de minimis in
5222        LABOR/COMMUNITY v. L.A. COUNTY MTA
relation to the overall scheme of things. Because the first
prong of the Rufo test fails, we hold that the district court did
not abuse its discretion in refusing to extend the decree.

   [11] Our decision is consistent with the principle that fed-
eral court intervention in state institutions is a temporary mea-
sure and may extend no longer than necessary to cure
constitutional violations. See Bd. of Ed. of Okla. City Pub.
Sch. v. Dowell, 498 U.S. 237, 248 (1991); Toussaint v.
McCarthy, 801 F.2d 1080, 1087 (9th Cir. 1986). In this case,
as the district court found, perhaps every last wish and hope
of the decree was not achieved, but the decree accomplished
its essential purposes and the situation improved greatly.
These improvements strongly inform our assessment that the
district court was within its discretion in holding that it no
longer needed to oversee the running of the Los Angeles
County bus system.

B.     BRU’s Motion for Contempt Sanctions

   BRU also contends that the district court abused its discre-
tion in denying its motion for civil contempt sanctions against
MTA for MTA’s alleged failure to comply with the 2004
Final Order. For issuance of a contempt order against MTA
to be proper, BRU must establish “(1) that [MTA] violated
the court order, (2) beyond substantial compliance, (3) not
based on a good faith and reasonable interpretation of the
order, (4) by clear and convincing evidence.” In re Dual-Deck
Video Cassette Recorder Antitrust Litig., 10 F.3d 693, 695
(9th Cir. 1993). BRU argues that MTA violated the Final
Order in two ways: (1) by failing to allocate all of the newly
purchased buses and additional service hours to peak time
periods, and (2) by failing to hire any new mechanics.

   The Final Order required that, among other things, MTA
purchase “the vehicular equivalent of 145 new 40-seat expan-
sion buses” and add an additional 290,145 annual in-service
hours. MTA did add 145 buses and 298,985 in-service hours
            LABOR/COMMUNITY v. L.A. COUNTY MTA              5223
to the bus system. But according to BRU, MTA violated the
Final Order by failing to allocate all of these resources to peak
time periods. MTA does not dispute that some of the new
hours and buses went to non-peak times, but contends that the
Final Order gave MTA discretion regarding how to perform
the allocation.

   [12] Upon review of the Final Order, it is not immediately
obvious whether the hours and buses were required to be allo-
cated to peak time periods. There is no express language
directing MTA to do so and the Final Order provides MTA
with “discretion” to deploy the buses “throughout the bus sys-
tem.” Even assuming that MTA violated the Final Order by
allocating some resources to non-peak time periods, the dis-
trict court was within its discretion in ruling that contempt
sanctions were not warranted. There is no evidence that
MTA’s conduct was “not based on a good faith and reason-
able interpretation of the order.” See id.

   [13] While MTA did not add all of the additional in-service
hours to peak periods, it did add an estimated 162,947 annual
in-service hours during peak periods and did increase its total
annual in-service hours by more than the amount required by
the Final Order. MTA also added 145 buses to its fleet as
required (though it is not clear how many of those buses were
added to peak time periods). These efforts rebut any inference
that MTA was acting in bad faith. In addition, even if MTA’s
interpretation of the Final Order were ultimately deemed
incorrect, it was not unreasonable. MTA is right that the Final
Order does not literally state that the additional hours and
buses must be added during peak times.

  [14] BRU also argues that MTA’s failure to hire new
mechanics violated the Final Order, which mandated that
MTA “[h]ire additional mechanics as needed to meet the
expansion service requirements[.]” The language “as needed”
renders the directive conditional, and we have no basis to
second-guess MTA’s conclusion that it had no need to hire
5224        LABOR/COMMUNITY v. L.A. COUNTY MTA
more mechanics. It is, for example, undisputed that MTA
added nearly 300,000 annual in-service hours after Special
Master Bliss issued the Final Order. The fact that MTA
increased its in-service hours so significantly without adding
mechanics lends substantial credence to its argument that no
new mechanics were needed to meet its obligations under the
Final Order.

   [15] We hold that BRU has not demonstrated that the dis-
trict court abused its discretion in declining to sanction MTA
for its alleged violations of the Final Order.

                      IV.   Conclusion

  For the foregoing reasons, the District Court’s denial of
Plaintiffs’ Motion to Extend and its denial of Plaintiffs’
Motion for Civil Contempt Sanctions are AFFIRMED.



BERZON, Circuit Judge, dissenting:

  I respectfully dissent.

   The defendants simply did not comply, substantially or oth-
erwise, with the Consent Decree’s requirements for relieving
the overcrowding on buses. The Consent Decree and the asso-
ciated orders from the Special Master spell out in detail the
method by which the parties agreed to measure bus over-
crowding and define performance targets that MTA is
required to meet. Critically, the Decree also expressly prohib-
its MTA from seeking to modify the Decree for changed cir-
cumstances because of the difficulty meeting targets as set out
in the Decree. See Consent Decree § II.A.4 (“The failure of
MTA to meet target load factors shall not be deemed a
changed or unforeseen factual condition for purposes of seek-
ing a modification of this Consent Decree by MTA”).
            LABOR/COMMUNITY v. L.A. COUNTY MTA               5225
   Yet, it is just such a modification that MTA has in effect
granted to itself, and that the majority is willing to counte-
nance. Unable to comply with the load factor targets defined
in the Decree, MTA devised its own measure of compliance
and then announced that it had met that measure. The district
court went along, without explaining why the defendants were
entitled to rewrite a provision to which they had consented
and which they had contractually agreed not to try to modify.

   Under these circumstances, I am quite certain, it was an
abuse of discretion for the district court to terminate its juris-
diction to enforce the Decree. To rule otherwise is to sanction
a governmental agency’s flaunting of the law and breaking of
solemn promises. I can agree to neither.

  1.   The Consent Decree

  The majority’s account of the background of this case is
accurate but incomplete.

   First, the Decree identified the reduction of overcrowding
on County buses as one of its “critical objective[s].” The
means for accomplishing this objective, and, more impor-
tantly, the interpretation and enforceability of provisions in
the Decree designed to achieve this goal have long been a
subject of dispute between the parties. See, e.g., Labor/
Community Strategy Ctr. v. L.A. County Metro. Trans. Auth.,
263 F.3d 1041, 1043 (9th Cir. 2001) (“Labor/Community”). In
this appeal, BRU once again contests MTA’s compliance with
Section II.A of the Decree, which committed MTA to
“[r]educing [o]vercrowding [b]y [a]dding [n]ew [s]ervice.”

   As the majority recites, to measure compliance with this
requirement, the Decree set forth specific “load factor tar-
gets,” with specified compliance dates for each target, and
provided MTA with “discretion in determining how the tar-
gets w[ould] be met.” See Maj. Op. at 5211-12 for an explana-
tion of the “load factor” concept. As the majority also
5226        LABOR/COMMUNITY v. L.A. COUNTY MTA
explains, the Decree included procedural mechanisms to mon-
itor implementation and enforcement. See Maj. Op. at 5212.

   It is notable — but not noted by the majority, except in
passing, see Maj. Op. at 5213-14 — that this is the second
time, not the first, that MTA has come to this court to com-
plain that the load factor target terms of the Decree are too
harsh. In Labor/Community, MTA argued that the district
court had erred in interpreting the load factor target require-
ments of the Decree. See 263 F.3d at 1048. The targets, MTA
asserted, “were simply performance goals that MTA promised
to use its ‘best efforts’ to meet, but with which the [D]ecree
only required ‘substantial compliance.’ ” Id. at 1048. We dis-
agreed, holding that MTA’s interpretation of what the Decree
required “[was] refuted by a reading of the [D]ecree as a
whole.” Id. The Decree, we observed, “set out a mathemati-
cally precise method of measuring bus overcrowding and a
detailed schedule of load factor targets that were to be met by
specific dates.” Id. at 1048-49. Therefore, “[t]o say that
MTA’s ‘best efforts’ are enough for compliance would be to
ignore the precise load factor schedule set out in the decree.”
Id.

   As I see this case, having failed to persuade us in Labor/
Community that the load factor targets were only “perfor-
mance goals” to be used to evaluate MTA’s “best efforts,”
MTA went forward as if that is all they were. The district
court went along with this subversion of the Decree, and now
the majority does as well.

  2.   The Special Master’s Final Order

   In 2003, two years after we issued the Labor/Community
opinion, the question of MTA’s failure to meet the load factor
targets was once again before the Special Master. At that
point, “[a]lthough the MTA ha[d] made significant service
improvements,” it was “undisputed that, during weekday peak
              LABOR/COMMUNITY v. L.A. COUNTY MTA                       5227
hours,1 the MTA did not meet the [2000 load factor target of
1.25] on 72 non-exempt bus lines, and did not meet the [2002
load factor target of 1.2] on 75 non-exempt bus lines.” More-
over, the BRU/MTA Working Group had concluded that
meeting the peak hour load factor targets would “require the
addition of 185 buses and 425,500 revenue service hours.”

   Once again, the parties could not agree on a specific reme-
dial plan.2 Therefore, after first issuing a proposed order to
determine points of agreement and elicit modifications, the
Special Master promulgated a “Final Order on Remedial Ser-
vice Plan to Meet 1.25 and 1.2 Load Factor Target Require-
ments” (the “Final Order”). As the majority recounts, see Maj.
Op. at 5214, the Final Order spelled out that “[i]n order to
achieve compliance with the Consent Decree and to meet and
maintain the 1.2 [load factor target],” MTA was required to
provide the additional buses and service hours the Working
Group had identified as necessary, and specified how it might
do that. In addition, although the Final Order stated that the
MTA would have discretion both in “how to deploy and
schedule” the new buses and in allocating the additional in-
service hours “on specific bus lines and during specific time
periods throughout the bus system,” the Order also made clear
that “MTA should deploy this additional service to meet the
objective of alleviating bus overcrowding to achieve the 1.2
[load factor target] on each and every bus line.” The Final
Order further stated that providing this expanded service,
along with the other improvements specified, would constitute
“substantial compliance with the load factor targets of the
Consent Decree and create a presumption that [its] expansion
  1
    Data for off-peak time periods was not available at the time.
  2
    For example, although the Working Group had determined that MTA
needed to add 185 buses to the relevant bus routes, MTA asserted that it
could achieve the functional equivalent of adding 185 buses (or some por-
tion thereof) by scheduling its existing fleet more efficiently. It therefore
contended that it did not need physically to purchase 185 new buses. BRU
contested these assertions.
5228          LABOR/COMMUNITY v. L.A. COUNTY MTA
bus procurement requirements . . . have been met.” In other
words, the Final Order determined what would constitute
“substantial compliance.” MTA’s self-conferred abandonment
of the load factor targets was not sanctioned by the Final
Order.

  3.    The District Court’s Opinion

   After the district court declined to appoint a new Special
Master, BRU filed motions to extend the duration of the
Decree and for contempt sanctions; the district court denied
both.3 Critically, the paragraph the majority quotes on page
5218 from the district court’s opinion is all the explanation
the district court provided. Why the district court thought that
“MTA has substantially complied” even though it entirely
failed to comply according to the measure carefully included
in the Decree, affirmed by this court, and elaborated upon in
the Special Master’s Final Order, we were not told.

   As the majority holds, see Maj. Op. at 5217, lack of sub-
stantial compliance qualifies as a significant change in cir-
cumstances justifying modification of a consent decree by
extending the length of judicial oversight. In my view, the dis-
trict court’s unexplained conclusion that there was substantial
  3
    I note that BRU suggests that the Decree has no termination date and
so extends beyond the ten year period. The Decree is in fact silent with
respect to its overall termination date. Compare Holland v. New Jersey
Dept. of Corrections, 246 F.3d 267, 279 (3rd Cir. 2001) (quoting the con-
sent decree, which explicitly and separately defined both the duration of
the district court’s jurisdiction and the duration of the decree as a whole).
It is therefore probable that the Decree is enforceable as a contract even
if not as a judicial decree. See, e.g., Board of Educ. of Oklahoma City v.
Dowell, 498 U.S. 236, 244-46 (1991) (holding that a desegregation decree
extended beyond the district court’s termination of its jurisdiction). Any
such contractual enforcement issue is, however, beyond the scope of the
current appeal.
              LABOR/COMMUNITY v. L.A. COUNTY MTA                    5229
compliance has no basis in the record, and was therefore
clearly erroneous.4

   Before turning to a discussion of MTA’s compliance with
the Decree since 2004, I note that the majority’s reliance on
the district court’s “decade of knowledge about the case,” and
its characterization of the district court as “uniquely posi-
tioned to determine whether there had been substantial com-
pliance,” Maj. Op. at 5218, is grounded largely in fiction.
Until his resignation in early 2006, Special Master Donald
Bliss played the central role in monitoring MTA’s compliance
with its Decree obligations. For example, prior to issuing the
1999 Remedial Order that this Court upheld, Bliss conducted
a painstaking bus line-by-bus line review of MTA’s perfor-
mance with respect to the 1.35 load factor target. The Order
itself included an appendix which identified problems and
proposed solutions for individual lines. The Special Master’s
87-page 2004 Final Order likewise included detailed findings
regarding MTA’s compliance with the load factor targets and
mandated highly specific remedies. In addition to these
orders, Special Master Bliss issued literally dozens of detailed
opinions and memoranda related to compliance issues. So, in
fact, it was the Special Master, not the district court judge,
who had been overseeing the Consent Decree on a day-to-day
  4
    We have previously held in the context of a party’s compliance with
a federal regulation, that the “issue of substantial compliance is a mixed
question of law and fact” that we review de novo. See Louisiana-Pacific
Corp. v. ASARCO Inc., 24 F.3d 1565, 1576 (9th Cir. 1994). I nonetheless
apply the more deferential clearly erroneous standard to our review of the
district court’s determination that MTA had substantially complied with
the Decree for two reasons. First, BRU itself asks us to apply that stan-
dard. See Appellant’s Opening Brief at 6 (“The factual findings them-
selves, such as the nature of the data and what the data meant, and the
resulting state of compliance with this Decree, are addressed by a review-
ing court under the clearly erroneous standard.”) (emphasis added). Sec-
ond, my review of the record indicates that the districts court’s decision
warrants reversal even under the more deferential standard. Whether we
apply the clearly erroneous standard or a de novo standard is therefore
irrelevant.
5230          LABOR/COMMUNITY v. L.A. COUNTY MTA
basis, who was intimately familiar with both its provisions
and its on-the-ground application, and who had issued the key
orders interpreting and implementing the Decree.

   Moreover, with the resignation of the Special Master and
Judge Hatter’s refusal to appoint a new one (even though the
parties had agreed on a replacement), specific findings of the
type that permeated Special Master Bliss’s orders were not
available to the district court in deciding the motions that
underlie this appeal and are not available to us now. Bliss
himself does not appear to have updated his 2004 analysis of
MTA’s compliance with the load factor targets before his res-
ignation in 2006. And, although it is possible that the district
court performed a detailed review of MTA’s compliance
before issuing its order denying BRU’s motion to extend, its
terse opinion does not reveal that it did, suggest what that
review entailed, or indicate what facts were found.5

   At a minimum, the majority should have remanded for
some elucidation of the district court’s fact findings and legal
reasoning before accepting its unexplained conclusions. But
the majority does not do so.

  4.   MTA’s Compliance with the Load Factor
       Requirements

   Notwithstanding the limitations just discussed, the evidence
that is available clearly reveals that MTA has not substantially
complied with its commitments under the Decree. Specifi-
cally, MTA abysmally failed to meet the current load factor
target, a “critical objective” of the Decree. Several facts dem-
onstrate the broad extent of MTA’s noncompliance.
  5
   Because the parties did not timely appeal the district court’s decision
not to appoint a replacement special master, we cannot now reverse it. See
28 U.S.C. § 2107. Were the issue before us, I would hold that the failure
to appoint the new special master agreed upon by the parties was, given
the terms of the Consent Decree, an abuse of discretion.
            LABOR/COMMUNITY v. L.A. COUNTY MTA            5231
   First, as of the 2004 Final Report, MTA did not dispute that
it had failed to meet the 1.20 load factor target in 2002 and
2003 on a significant number of its bus lines during peak
hours, and that remedial measures were warranted. This con-
clusion, reached by the Joint Working Group, affirmed by the
Special Master, and not appealed to the district court by
MTA, rested on an analysis of line-by-line data collected by
MTA.

   Second, the updates to this data reveal that MTA remains
substantially noncompliant. For example, data from 2005 and
2006 show that MTA failed to meet the 1.20 target on approx-
imately 80 out of 90 monitored bus lines, a noncompliance
rate of almost 90%. See David C. v. Leavitt, 242 F.3d 1206,
1212 (10th Cir. 2001) (concluding that an 80% noncompli-
ance rate qualified as “substantial noncompliance” and mer-
ited modification of the decree); Vanguards of Cleveland v.
City of Cleveland, 23 F.3d 1013, 1019 (6th Cir. 1994) (hold-
ing that noncompliance rates of between 25% and 40% were
substantial enough to warrant modification under Rufo v.
Inmates of Suffolk County Jail, 502 U.S. 367 (1992)).

   Tellingly, MTA does not dispute this data or suggest that
it was either collected or analyzed in a manner different from
that employed by the Working Group and the Special Master
in 2004. Rather, MTA suggests — and the majority agrees —
that an entirely different approach can be used to analyze the
data for purposes of determining substantial compliance with
the Consent Decree, and that this new approach demonstrates
that MTA is now in substantial compliance with the targets.

   There are, however, several problems with the approach
MTA espouses and the majority — blindly, with no inquiry
at all into its premises — relies upon. First, MTA’s methodol-
ogy, even if accepted at face value, does not reveal an identi-
fiable change in the rate of MTA’s compliance with the load
factor targets between 2002, a period for which MTA agreed
that it was not substantially compliant, and now, when it
5232          LABOR/COMMUNITY v. L.A. COUNTY MTA
claims to have achieved substantial compliance. For instance,
according to MTA’s new methodology and its own calcula-
tions, the agency was in compliance with the 1.20 load factor
target 96.38% of the time in the third quarter of 2005 and
95.99% of the time in the fourth quarter of 2005. MTA’s own
calculations using this same methodology indicate, however,
that MTA was 96.14% compliant with the 1.20 load factor
target in the third quarter of 2002, 95.28% compliant in the
fourth quarter of that year, and 95.97% compliant in the third
quarter of 2003. Indeed, a comparison of MTA’s revised 2002
and 2003 calculations with its 2005 figures shows virtually no
change in MTA’s rate of compliance. Yet, as discussed above,
MTA did not dispute in 2004 that it was not substantially
compliant with the targets in 2002 and 2003. In other words,
MTA’s new methodology supports BRU’s argument that
MTA is no more compliant with the load factor targets now
than it was when the Special Master issued the Final Order,
finding that there had not yet been substantial compliance and
setting out standards for judging substantial compliance in the
future.6

   In addition to failing to demonstrate any increase in its rate
of compliance with the load factor targets, MTA’s proposed
methodology suffers from fundamental conceptual deficien-
cies. MTA readily acknowledges that its approach provides an
aggregate measure of compliance with the 1.20 target, by
averaging performance across bus lines. However, as Special
Master Bliss repeatedly stated, “Section II of the Decree
requires that the load factors be met on each and every bus
line.” Final Order at 46 n.39 (emphasis added). Thus, MTA’s
methodology does not provide adequate information for
adducing its compliance with the Decree.
  6
    In support of its argument that it need not achieve 100% compliance
with the targets, MTA regularly cites statements by Special Master Bliss
that “the Consent Decree does not require perfection.” Whatever implica-
tions these statements may have, however, MTA has not demonstrated that
it is any closer to achieving “perfection” or near “perfection” than it was
in 2004.
            LABOR/COMMUNITY v. L.A. COUNTY MTA              5233
   The Authority’s approach also averages peak and non-peak
hour data. Once again, such averaging runs counter to the
express language of the Decree, which specifically requires
that the agency meet the load factor targets during both peak
hours and non-peak hours. In other words, MTA cannot dem-
onstrate substantial compliance by averaging low compliance
rates in peak hours with high compliance rates in non-peak
hours. It must achieve high compliance rates on each relevant
bus line during both peak and non-peak periods to substan-
tially comply with Decree, as that — not just some average
improvement — is what the Decree required.

   Despite these significant problems with its approach, MTA
contends that its method is superior to BRU’s because,
according to MTA, BRU’s methodology “misleading[ly]”
identifies a bus line as noncompliant for a given quarter if that
line exceeds the target even once in that quarter. MTA’s argu-
ment is unpersuasive for two reasons. First, the Special Mas-
ter agreed with BRU that a single measured exceedence
renders a bus line noncompliant. See Final Order at 7 (For
example, 57 monitored bus lines exhibited one or more excee-
dences above 1.35 LFT [in 2003Q3] . . . Moreover, 40 moni-
tored bus lines exhibited one or more exceedences above 1.5
[load factor target.]”) (emphasis added). Second, MTA’s own
methodology suggests that each line exceeds the load factor
target more than once per quarter. For example, in the first
quarter of 2005, MTA’s data show there were 271 measured
exceedences across 65 monitored bus lines. This number of
exceedences equates to just over 4 measured exceedences per
line per quarter. The number of exceedences on these 65 lines
jumps to 532, or more than 8 per line per quarter, by the
fourth quarter of that same year. In short, even if MTA is cor-
rect in characterizing BRU’s methodology as “misleading” —
a characterization the majority echoes, even though the meth-
odology is the one employed by Special Master Bliss — its
own data and methodology suggest that it frequently exceeds
the load factor targets.
5234        LABOR/COMMUNITY v. L.A. COUNTY MTA
  The majority does not recognize any of these deficiencies
in MTA’s statistical showing, maintaining that the parties
simply “interpret [the] data” in different ways, and that “both
[parties’] figures are correct.” Maj. Op. at p. 5219. That sim-
ply cannot be.

   The load factor targets, measured as BRU measures them,
are in the Decree; they are not simply external measures of
compliance with more general goals contained in the Decree.
So, in effect, far from “using a holistic view of all available
the information,” Maj. Op. at 5220, to judge compliance with
the Decree, the majority would sanction an implicit, unilat-
eral, substantive modification of the consent decree at the
behest of the defendants, changing the method agreed upon by
the parties for determining how the overcrowding problem
would be solved. Moreover, the Decree, as interpreted by the
Special Master with the approval of this court, prescribed the
manner in which the targets are to be understood and applied.
To call that prescribed methodology an “imperfect and mis-
leading metric,” Maj. Op. at 5219, and then ignore it is to
rewrite the Decree. It is that metric, imperfect or otherwise,
the parties chose and the district court adopted, not some
other.

   Using the Decree’s methodology, the defendants were not
in substantial compliance. Only by altering the decree’s
agreed-upon methodology can one come to an opposite con-
clusion. Put another way, although the methodology defen-
dants suggest and the majority would sanction could have
been the agreed-upon way of curing the overcrowding prob-
lem, it was not. That is why it is only by substantively modi-
fying the consent decree that the defendants could have
reached the result they support and that the majority approves.

   But the defendants did not move for such a modification.
The reason, in all likelihood, is that they were precluded by
the decree itself from doing so.
            LABOR/COMMUNITY v. L.A. COUNTY MTA             5235
   Section II.A.4 of the decree provides that “The failure of
MTA to meet the target load factors shall not be deemed a
changed or unforeseen factual condition for purposes of seek-
ing a modification of the Consent Decree by MTA.” That the
parties included this unusual provision in the consent decree
indicates how important the precisely delineated target load
factors provided for in the decree were to the bargain struck.

   In the end, MTA did fail to meet the target load factors the
parties had agreed upon, not just here and there but substan-
tially. In other words, MTA did not substantially comply with
the terms of the Decree. Period. Instead, MTA sought to
prove substantial compliance by formulating a different mea-
sure of load improvement than the parties’ bargain required.
Allowing that alteration would be tantamount to a substantive
modification of the decree in the defendant’s favor.

   But no modification has been requested, and no basis for
one has been suggested other than the contractually forbidden
consideration — that MTA did not meet the target load fac-
tors provided for in the consent decree. To backdoor the con-
sent decree’s prohibition on modification by unilaterally
failing to comply throughout the period of the decree and then
claiming substantial compliance through a different measure
than the parties agreed upon simply flaunts the rule of law.
That the majority approves this lawless stratagem by a public
body can only encourage others to engage in similarly bald
evasion of judicial decrees arrived at after lengthy negotiation
and approved by the courts. It is grave concern about sanc-
tioning such evasion that motivates this dissent, even more so
than the quite serious indignities many people in Los Angeles
suffer when using the City’s transportation system and that
the Decree was supposed to alleviate.

   In an alternative argument not addressed by the majority,
MTA asserts that, regardless of what the data about actual
overcrowding shows, it substantially complied with the load
factor targets of the Decree by implementing the capacity
5236          LABOR/COMMUNITY v. L.A. COUNTY MTA
expansion requirements imposed on it by Special Master Bliss
in the Final Order. These requirements included the purchase
of 145 40-seat buses and the addition of 290,145 annual in-
service hours.

   Special Master Bliss did indicate that MTA’s implementa-
tion of the requirements just discussed would “constitute good
faith, substantial compliance with the load factor targets of the
Consent Decree” and would “create a presumption that the . . .
requirements of Section II.A of the Decree have been met.”
And BRU does not dispute that MTA added almost 300,000
annual in-service hours since the 2004 Final Order.

   The problem with MTA’s position, however, is that it
added 45% of these in-service hours during non-peak time
periods. MTA asserts that this allocation is consistent with the
Final Order because the Order did not specifically state that
the additional hours had to be added at peak times. MTA
maintains that the Decree provided MTA with discretion con-
cerning when to add the hours, and that the non-peak hour
additions therefore give rise to the compliance presumption
alluded to in the Order.

   This interpretation of the Final Order is wrong.7 Although
the Final Order inartfully states that “the MTA has discretion
in scheduling [the additional buses and in-service hours] on
specific bus lines and during specific time periods throughout
the bus system,” the Special Master undeniably intended
  7
    I note that the district court has never provided its own interpretation
of the Final Order’s requirements. In 2004, it affirmed the Final Order in
its entirety in a single sentence. In the 2006 order which gives rise to this
appeal, the district court stated only that “MTA has substantially com-
plied, and taken all reasonable steps within its power to insure compliance,
with the Final Order.” Although we typically review a district court’s
interpretation of a consent decree de novo with “deference . . . based on
the court’s extensive oversight of the decree,” the district court has not
provided a pertinent interpretation of the Final Order to which we might
defer.
            LABOR/COMMUNITY v. L.A. COUNTY MTA               5237
MTA to add the additional buses and in-service hours to peak
time periods. The clearest indication of this intent is provided
in the section of the Final Order entitled, “What level of
expansion service should be added to alleviate bus over-
crowding during off-peak hours?” In the section, Special
Master Bliss states that “the Consent Decree also requires that
the load factor targets be met during off-peaks hours.”
(emphasis added). Notwithstanding this requirement, the Spe-
cial Master deferred a decision on MTA’s compliance with
off-peak targets on the grounds that the relevant data were not
yet available. The Special Master then instructed that, once
the data was collected,

    The JWG thereafter should apply the remedial meth-
    odology and determine the number of off-peak
    [expansion service units] to be implemented by the
    MTA in the June 2004 service change. Since peak
    fleet requirements are greater than off-peak require-
    ments, this should not necessitate the procurement of
    any additional expansion buses, but it will require an
    appropriate increase of bus in-service hours during
    the relevant off-peak periods.

Final Order at 59 (emphasis added). In other words, the Spe-
cial Master indicated that, at the time of the Final Order, he
was not yet certain how many additional in-service hours
were required during off-peak periods (although he did
believe that some increase would be necessary). By implica-
tion, his exceedingly specific 290,145 additional in-service
hour requirement must have applied only to peak hours.

   This interpretation is further confirmed by the fact that Spe-
cial Master Bliss derived the 145 bus and 290,145 hour
requirements from the Working Group’s conclusion that
MTA needed to add “331 expansion service units [to] the
weekday A.M. peak hours . . . and 453 expansion service
units [to] the weekday P.M. peak hours.” In other words, the
requirements were tied directly to the Working Group’s deter-
5238        LABOR/COMMUNITY v. L.A. COUNTY MTA
mination that MTA needed to expand service during peak
times; the Working Group made no such determination
regarding non-peak periods.

   In short, although the Special Master provided MTA with
the discretion to add the 290,000 in-service hours wherever it
chose “throughout the bus system,” and whenever it chose
during peak time periods, MTA was nonetheless required to
add those hours to peak time periods. MTA’s contention to
the contrary is untenable.

   I conclude that an analysis of the record leads to only one
reasonable conclusion: MTA remains substantially noncompl-
iant with the load factor targets.

  5.   MTA’s Compliance with the Other Decree
       Requirements

  MTA suggests, and the majority in passing agrees, that,
even if MTA did not substantially comply with the load factor
requirements, it nonetheless substantially complied with the
Decree as a whole, because it satisfied other obligations
imposed on it by the Decree. As examples of its success in
meeting the Decree’s other requirements, MTA cites its intro-
duction of a Regional EZ Transit Pass and a Day Pass and
implementation of the Metro Rapid bus network as a form of
new service.

   I am not persuaded. The Decree describes the reduction of
bus overcrowding through compliance with the load factor
targets as a “critical objective.” Moreover, the Decree estab-
lishes a “mathematically precise,” Labor/Community, 263
F.3d at 1046, system of targets and deadlines for achieving
this objective, and devotes more text to the load factor
requirements than to most of the other requirements com-
bined. Only those provisions related to bus fares rival the load
factor requirements in apparent importance.
             LABOR/COMMUNITY v. L.A. COUNTY MTA                    5239
   The import of the load factor requirements is further under-
scored by the substantial amount of time the Special Master
and the Working Group devoted to monitoring MTA’s com-
pliance with those requirements and to crafting remedial mea-
sures to cure MTA’s noncompliance. The voluminous pre-
2004 administrative record belies any suggestion that compli-
ance with the load factor targets was not of predominant signifi-
cance.8

  In sum, because the load factor targets are such a central
component of the Decree, I cannot accept the majority’s sug-
gestion that compliance with other provisions could outweigh
MTA’s lack of substantial compliance with the targets.

   I would hold, therefore, that MTA did not substantially
comply with the Decree’s load factor requirements, and that
this failure qualifies as a significant change in factual circum-
stances sufficient to justify extension of the district court’s
enforcement authority. Under the terms of the Decree, MTA
promised that it would meet the third and final target by June
30, 2002, four full years before the district court’s retention
of jurisdiction ended. As explained above, MTA remains sub-
stantially noncompliant with the Decree’s load factor require-
ments, and therefore failed to adhere to its promise and the
parties’ expectations. Extending the Decree to ensure that the
planned compliance occurs is a natural response to MTA’s
failure.
  8
    It is also noteworthy that the Special Master downplayed the signifi-
cance of alleged improvements such as the Metro Rapid Service and the
Limited Stop Service. See Final Report at 30, 31 (noting that “bus over-
crowding conditions worsened on Line 111 (Florence Avene) after the
inauguration of Rapid Bus service” and that “[o]vercrowding similarly
persists on Lines 60 (Long Beach Blvd.) and 66 (E. Olympic Blvd.) even
after the introduction of Limited Stop Service”).
5240          LABOR/COMMUNITY v. L.A. COUNTY MTA
  6.     Conclusion

   In short, I would hold that the district court erroneously
concluded that MTA had substantially complied with its obli-
gations under the Decree, and so abused its discretion when
it denied BRU’s motion to extend its jurisdiction to enforce
the Decree. See Kenney, 458 F.3d at 1032. Although I agree
with the majority that a consent decree should extend no lon-
ger than necessary, See Maj. Op. at 5220-21, MTA’s ongoing
failure to comply with a “critical objective” of the Decree
necessitates extension in this case. See Board of Educ. of
Oklahoma City, 498 U.S. at 249-50 (holding that, when decid-
ing whether to dissolve a decree, the district court “should
address itself to whether the [defendant] had complied with
the [consent] decree since it was entered”). I therefore
respectfully dissent.9




  9
    I concur in the majority’s holding that the district court did not abuse
its discretion in concluding that contempt sanctions are not warranted.
