The opinion of the court was delivered by: David G. Larimer United States District Judge
The matter before the Court is plaintiff's motion to stay the July 30, 2007 decision of the Federal Transit Administration ("FTA") which ordered plaintiff Rochester-Genesee Regional Transportation Authority ("RGRTA") and its subsidiary, Regional Transit Service ("RTS") from continuing to provide school bus services on certain routes in the City of Rochester. The FTA determined that the routes at issue--specifically, those with route numbers over 200--were "prohibited school bus operations" that impermissibly competed with private-sector school bus operators. Dkt. #7 Ex. A at 11. See 49 U.S.C. § 5323(f)(1) (providing that federal financial assistance to public transportation providers may be used "only if the applicant agrees not to provide schoolbus transportation that exclusively transports students and school personnel in competition with a private schoolbus operator"). The FTA therefore ordered RGRTA to "cease and desist and not reinstitute such service prior to the commencement of the fall 2007 academic year," and barred RGRTA from receiving federal transit assistance funds in an amount "not to exceed the amount [RGRTA] has received in subsidy for school bus operations in the 2006 school year," less RGRTA's costs incurred in operating those services. Dkt. #7 Ex. A at 11.
RGRTA has appealed that decision to this Court pursuant to the Administrative Procedure Act ("APA"), 5 U.S.C. §§ 701-706, and now seeks to stay the FTA's decision pending judicial review. The motion for a stay is granted, but only in part.
The matter was first brought to this Court's attention when plaintiff filed its complaint and motion for a stay on August 2 and August 8, 2007, respectively. Because the school year commences on September 6, 2007, this Court set a very expedited briefing and argument schedule. Since the complaint was filed, the Court has received numerous pleadings and legal memoranda both by plaintiff, the FTA and intervenors Laidlaw Transit, Inc. and the union representing employees of Laidlaw ("Union"). Much legal energy has been expended on the issues before the Court.
Although I am not convinced that plaintiff is entitled to a permanent stay while this appeal is litigated, I do believe that a brief stay is warranted to avoid the potential chaos and disruption in the transportation of students that could ensue should the FTA's decision be given immediate effect.
A brief stay is necessary to avoid that potential harm to students, their parents and other members of the public that rely on or are affected by the bus transportation in question.
At this point, the most important concern for the Court is the effective and orderly transportation of students to and from school. Thousands of students utilize bus service, and they and their families need to know immediately all of the details of the bus service. For last year's entire school year, RTS provided school bus service throughout the city. The Rochester City School District ("RCSD" or "the District") changed its start times and RTS was able to accommodate that. Students, parents, employers and school administrators have come to rely on that service. It appears that such service is prohibited and must come to an end, as implemented, but I believe that under the circumstances now presented to the Court, it would be disruptive and dangerous to precipitously eliminate the bus service currently in place.
The respective lawyers have urged the Court to consider the rights of their clients, the RGRTA, Laidlaw and the RCSD. My primary concern now, though, is with the students who, as of today, have no idea what bus will transport them to school, at what times and from what locations. It is unfortunate that both this Court and the students have been put in that position. There has been a bit of an ostrich-like mentality here. In January the FTA issued its first decision prohibiting plaintiff from providing school bus service. Throughout the spring, that matter was relitigated, which ultimately led to the FTA's July 30, 2007 decision reaffirming its earlier one. That decision, though, did not come out of the blue. It was foreshadowed by the January decision, and it was certainly incumbent on all concerned to prepare contingencies to allow for the seamless transportation of students commencing September 6, 2007. That apparently has not yet occurred.
At oral argument on the motion for a stay, on August 27, 2007, it was evident that Laidlaw could service some of the schools and routes in question, but not at the times requested by the District and not as to all schools. In fact, the attorney for Laidlaw conceded that there had been virtually no communication with the District concerning certain schools, and Laidlaw conceded that it could not provide any service at this point to one of the schools, The School of the Arts. Under these circumstances, I do not feel confident that Laidlaw could immediately step in, on less than a week's notice, to take over all of the necessary routes and to safely and efficiently transport all of the affected students to their designated schools.
Section 705 of the APA specifically provides that "to the extent necessary to prevent irreparable injury," a reviewing court "may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings." I believe, as the situation now presents itself, that the students, their parents, and others involved will suffer irreparable harm if the Court sanctions the immediate termination of the RGRTA school bus service. I do not believe that the rights of RGRTA or Laidlaw will be dramatically affected by a modest stay, until October 1, 2007, principally to allow the RCSD to provide alternative bus service, through Laidlaw or some other provider, or to work with the FTA and RGRTA to design appropriate so-called "tripper service," which is permitted under the relevant FTA regulations. See 49 C.F.R. §§ 605.3(b), 605.13. I believe that the interests of the students must trump any other interest at stake here, and I believe that should the Court deny the stay, there is the likelihood for much confusion, delay and perhaps even a complete failure to provide bus service to students who are entitled to receive it.
Make no mistake though. This stay is granted strictly to prevent irreparable harm to the students, their parents and others who rely on the bus service. Were it not for that concern, I believe plaintiff would not be entitled to a stay while this matter is being litigated. The standards for granting such relief are onerous, and plaintiff has failed to meet those tests. Plaintiff needs to overcome many hurdles to be entitled to a stay, and the proof is lacking to make the findings that are necessary before the Court may grant such a stay.
As indicated above, Congress has provided that recipients of federal funds for public transportation, such as RGRTA, may not use those funds to engage in "schoolbus transportation." See 49 U.S.C. §§ 5302(a)(10) ("The term 'public transportation' ... does not include schoolbus ... transportation"), 5323(f)(1) (applicant for public-transportation financial assistance must "agree not to provide schoolbus transportation ..."). In sum, Congress determined that federally subsidized bus companies must not compete with school bus operations. To some extent that clear Congressional mandate was reaffirmed in 2005 when Congress strengthened the FTA's powers to impose penalties for school bus violations. The Conference Report to the amendment of § 5323(f) states that Congress sought "more effective enforcement of schoolbus transportation violations" when "public transportation agencies violate the narrowly defined conditions under which public transportation providers can provide school bus transportation." H.R. Conf. Rep. 109-203 (July 28, 2005) at 952, 954.
Regulations promulgated by the FTA to implement these statutory directives have carved out an exception from the prohibition on school bus service for what is known an "tripper service." See 49 C.F.R. § 605.13 ("The prohibition against the use of buses, facilities and equipment funded under the Acts shall not apply to tripper service"). "Tripper service" is defined as regularly scheduled mass transportation service which is open to the public, and which is designed or modified to accommodate the needs of school students and personnel, using various fare collections or subsidy systems. Buses used in tripper service must be clearly marked as open to the public and may not carry designations such as "school bus" or "school special." These buses may stop only at ...